Scottish Court of Session Decisions

When this petition was called in Court, a number of parties appeared as respondents, and these, or some of them, are the defenders in the present action. The case came before the Justices on several days, and a proof was ordered, which extended over several adjournments, and at length, after a consideration of the whole matter, the Justices, on 17th July 1866, by a majority, found that the petitioner had failed to prove that the road in question had become useless and of no importance to the public, and refused to grant authority for shutting it up, and found the defenders entitled to expenses. Thereafter, upon 6th August, the defenders' account having been taxed, they decerned for the amount thereof against the pursuer. In these circumstances the question put to us by the Second Division asks us to decide as to the power of the Justices of the Peace to pronounce decree for expenses against the pursuer. But it appears to me there is another question which arises in order to enable us to decide that one, which is, whether the proceedings before the Justices were proper judicial proceedings. I mean not in form, because, as far as one can judge from the extracts, everything that was done was done in the most regular and praiseworthy way, but whether, acting under the statute, the Justices were acting in a judicial or ministerial capacity, because if they acted judicially when only authorised by the statute to act ministerially, then what they may have done will not be protected so as to become a judicial proceeding. As far as one can see, all they did do was regular and orderly, if they had only been entitled so to proceed. But the whole question turns upon the interpretation of the 70th section of the General Turnpike Act. That section provides for the procedure in three cases: (1) where any new turnpike road is made in lieu of an old road; (2) where any bye-road is used for the purpose of evading the toll duties imposed by any local act; and (3) where any old road or any bye-road does become useless or of no importance to the public—the case we have here. In all these cases it is provided that “it shall be lawful for the Justices at any stated meeting, on the application of the trustees of such road, to give orders for shutting up such old road or bye-road, after the expiration of six months from the date of such order or resolution, if not appealed, as hereinafter mentioned.” Now, considering this part of the clause by itself, it appears that the Justices are to be set in motion by an application by the trustees, and upon that application they are to give the required order. This order is not to take effect until “six months from the date of such order or resolution,” and then only if not appealed from. There is a further provision that “thirty days' notice of the intention to propose a resolution or order to that effect shall be given,” as therein directed. This notice is not of the application of the trustees, still less of the resolution to which the trustees have come, but it is a notice of an intention on the part of a Justice or Justices to propose to make a resolution or order, that is, an intention on the part of the Justices to endorse the resolution of the trustees, and so to give it practical and legal effect. So far there appears somewhat of a judicial character in the proceedings. There is notice to all parties interested, and the operation of the order is suspended that an opportunity of appeal may be given. If the statute had stopped there it would have been more difficult to construe. I am prepared to say I would then have been rather in favour of the judicial character of the proceedings. But when the nature of the appeal “hereinafter mentioned” is taken into account, the state of matters is changed. The statute proceeds as follows:—“But any person interested may complain of this determination of the trustees in any such matter within six months after the date of such order or resolution, but not afterwards, to the Justices of the Peace assembled in their Quarter Sessions, or to the Sheriff of any County through any part of which the road so proposed to be shut up may pass, which Justices or Sheriff are hereby authorised finally to determine all such complaints.” Now, by that clause, the right given to any person interested is not to appeal against the order of the Justices, but to complain of the resolution of the trustees, and it cannot be said that that is a judicial proceeding. The trustees pass the resolution at their own meeting, and it is that, and that only, against which any person interested may complain. A complainer cannot go to the Petty Sessions. He may go either to the Quarter Sessions or to one of the Sheriffs, as already described. But what he is to complain of is the determination of the trustees, and if that be not complained of for six months it becomes final. It seems to me, therefore, upon the whole construction of this clause, that the meaning of the Legislature is that the trustees at their own meeting, and in consequence of their own knowledge, are intended to come to a resolution to close the road if they see fit. That resolution is of no avail until it is endorsed by the Justices in Petty Sessions. It has no effect without this order of the Justices. The fact that six months is given for what in one part of the clause is called an appeal, but in another and more important part, and also more properly, is called a complaint, does not necessarily make the granting of the order a judicial proceeding. The only judicial proceeding commences with that complaint. I do not think that the framers of the Act meant that there should be a law-suit in the Petty Sessions, only to go over ground which would require to be gone over before the Quarter Sessions or the Sheriff, if there were a complaint.

It is also most important to observe that only one party can complain, not both. The private party only, and not the trustees. That this is so is evident, because the complaint is only against the determination of the road trustees, and that they should complain of their own determination is absurd.

I therefore come to the conclusion that the whole of this procedure is entirely without warrant in the statute; and the award of expenses here in question is vitiated and inept, but only because it was completely ultra vires of the Justices, under this clause of the statute.

Lords Cowan, Deas, Benholme, Ardmillan, Neaves, Kinloch, and Ormidale concurred.