Scottish Court of Session Decisions

On 27th October 1875 the pursuers served a notice under the 149th clause of the Police Act of 1862 on the defenders, as proprietors of the “footway in front of the property in High Street, Kirriemuir, belonging to you,” requiring them to have the footing in front of their property relaid in a certain specified manner.

Against this order the defenders appealed to the Sheriff, on the grounds that the footways of the burgh were regulated by the Forfarshire Roads Act of 1874, and not by the Police Act under which the notice proceeded; and that by the Forfarshire Roads Act the expense of repairing or relaying such footways must be met by the Police Commissioners out of the funds which they were thereby empowered to raise by assessment. The ground on which the Police Commissioners made their demand under the Police Act of 1862 was, that it had been adopted subsequently to the passing of the Forfarshire Roads Act, and must be held therefore to be the ruling Act.

The Sheriff-Substitute ( Robertson) recalled the order, and found the Commissioners liable in expenses, adding to his judgment the following note.

“ Note.—In 1874 the streets and footways in the burgh of Kirriemuir which are parts of statute-labour roads were handed over to the Police Commissioners, who are empowered to assess the inhabitants for the maintenance of said streets and footways, and for certain other purposes. This was all done under the Act of Parliament called the Forfarshire Statute-Labour Roads Act.

The Police Commissioners have availed themselves of their powers of assessment, and have levied the full maximum assessment allowed by the Act. They must apply the money in carrying out the purposes of the Act, and in no other way. After carefully considering the order complained against, the Sheriff-Substitute

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has come to be of opinion that the appellants are not bound to obey it, and that the Police Commissioners must themselves, out of the assessment they have levied, perform the work referred to in the order. The footway in front of the appellants' property was paved with dressed flagged pavement many years ago. The order complained against is to relay this existing footway with new pavement stones, according to specifications of the Police Commissioners. But the 22d section of the Forfarshire Roads Act specially exempts proprietors in the position of the appellants from the obligation to relay existing footways. It throws the onus of doing this on the Police Commissioners, who are to pay the cost of doing so out of the assessment levied. In other words, one of the purposes of the Act is to provide money for doing what the appellants are now ordered to do at their own cost by the order complained of. The money has been raised, and if the Police Commissioners do not themselves defray the cost of relaying this footway, they are not applying the money they have raised for one of the purposes for which they raised it.

All this appears so clear that it is difficult to understand why the Police Commissioners have issued the order complained against. But they adopted the Lindsay Act in 1875, and they now fall back upon the 149th section of that Act, under which they argue that the appellants are bound to execute the work at their own cost. That section provides for the formation of foot pavements at the cost of proprietors whenever they are called upon by the Commissioners to do so. It is argued that this clause, being one of a General Police Act for Scotland, overrides the provisions of any local Act. In other words, the Police Commissioners avail themselves of the Roads Act to get the appellants' money, and then avail themselves of the Lindsay Act to avoid spending it. They collect an assessment, and refuse to do the work for which they collected it.

The Sheriff-Substitute holds that the Commissioners having exacted the maximum assessment under the Roads Act, are barred by equity and common law from pleading the Lindsay Act as overriding the statutory claims on this assessment.”

To this interlocutor the Sheriff ( Maitland Heriot) adhered.

The Police Commissioners appealed to the First Division of the Court.

A question of competency was raised but not insisted in.

Argued for the appellants—On the adoption in 1875 of the General Police Act of 1862 it at once repealed by virtue of the 35th clause any prior police Acts, and the clauses of any local or general Acts dealing with police matters that might be in force in the burgh. Accordingly the liability here fell upon the owners of adjoining property, for paving is by the Act of 1862 declared to be a police purpose.

Authority— Campbell v. Leith Police Commissioners, June 29, 1865, 3 Macph. 1035.

Argued for the respondents—It is perfectly clear that the Forfarshire Roads Act is intended to stand along with any Police Act that may be in force or that may be adopted in the burgh, and there is a constant reference to the Police Act of 1862 implied in this local Roads Act, which shows that they were intended to be read together.

At advising—