Scottish Court of Session Decisions

“But, in the next place, the pursuer maintains that this clause was not intended to authorise the Magistrates, or any of them, to exercise the ædile jurisdiction competent to the Dean of Guild of a royal burgh, because the right to interfere with buildings in the burgh is conferred, not upon the Magistrates, but upon the Commissioners of Police, by clauses 202 to 205, both inclusive. Now, it is quite true that these clauses do require a person intending to build or rebuild a house within the burgh to give previous notice in writing to the Commissioners, with a plan showing the level at which the foundation of the house is proposed to be laid, and power is given to the Commissioners to disapprove of the level, and to fix the proper level, subject to an appeal to the sheriff, and to cause any building erected without notice, or made at a level different from that fixed by the Commissioners or the sheriff, to be altered or demolished. But these clauses of the Act occur in a different part of the statute from that in which clause 408 occurs. They occur in Part IV., which is entitled ‘Police Purposes,’ and in the subdivision or section 8 thereof, which is entitled ‘Drainage of Houses.’ Now, the drainage of a town is one of the proper police purposes of the Act, not necessarily or usually falling under the cognisance of the Dean of Guild, and the execution of these purposes is by the statute given, not to the Magistrates who are to exercise the jurisdiction of Dean of Guild, but to a different body, viz., the Commissioners of Police, who are composed of the Magistrates and Town Council (see section 46). It appears to me that the powers of sections 202, et seg., are conferred upon the Commissioners of Police purely for sanitary purposes, and not with the view of regulating the erection of buildings within the burgh. Indeed, this is made quite plain from the tenor of clause 170 and following clauses in a preceding subdivision of Part IV. of the statute, viz., section 6, entitled ‘Laying out New Streets,’ and from clauses 199, 200, et seg., of the Act, in section 8 or Part VI., which deals with drainage.

“This being so, it seems to be clear that the Magistrates of the burgh, as Magistrates of Police, are entitled under section 408 to the same oversight of buildings that the Dean of Guild of Edinburgh, or of any other royal burgh, has in the royal burgh of which he is Dean of Guild. Now, it cannot be disputed that the Dean of Guild of a royal burgh is entitled not only to prevent an owner within burgh from building so as to encroach upon the ground of his neighbours, but also to prevent the erection or structural alteration of any building, unless and until the exhibition of proper plans, and, if necessary, by personal inspection, he is satisfied that the building may proceed with safety to the community. But further, section 408 of the Act confers on the Magistrates the same jurisdiction in every respect as is or may be exercised hot only by the Dean of Guild, but by the magistrates of any royal burgh. Now, it cannot be doubted that in royal burghs where there is no Dean of Guild the magistrates are entitled to exercise the authority of Dean of Guild. This is laid down by Bankton, iv., 20, sec. 7, where he says:—‘In some burrows there is no Dean of Guild. In such cases those matters that belong to the Dean of Guild Court are within the cognisance of the magistrates, with advice of the council, to whose jurisdiction that of the Dean of Guild is understood to be annexed, where by the constitution of the burrow no separate Guild Court is established.’ Erskine also (ii. ix. 9) says:—‘Where the usage is not fixed, the Dean of Guild or other magistrate who is charged with the police appears to be trusted with a discretionary power of directing the buildings within burgh, subject to the review of the Court of Session.’ And the law as stated by Bankton and Erskine is fully recognised by the opinions of the judges in the case of Milne, 4 D. 3; Lamond v. Cumming, 2 Rettie 784. Indeed, so necessary is it that some such jurisdiction as that exercised by the Dean of Guild in royal burghs should be exercised by the magistrates or governing bodies of populous places, such as burghs of barony and regality, that the Court has held that the Magistrates of Paisley, a burgh of regality, who had immemorially exercised the jurisdiction as to buildings which a Dean of Guild could have exercised in a royal burgh, were entitled to continue to do so,— Neilson, 7 Sh. 182. And I think that the intention of the Legislature in enacting sect. 408 of the General Police Act of 1862, was to confer expressly upon the magistrates of all burghs of every kind which adopted the Act the ædile jurisdiction which, in the case of Paisley, a burgh of regality, the Magistrates had acquired by usage. I am therefore of opinion that the Magistrates of Hamilton were entitled to constitute themselves a Dean of Guild Court, and to issue and enforce the rules mentioned in the declaratory conclusions of the summons. It is indeed asserted in one of the pleas-in-law for the pursuer that these rules are unusual and unreasonable; butt his point was not insisted on at the debate, and I must say that these rules do not appear to me to be either unusual or unreasonable.

“If, then, the defenders had power to make the regulations referred to—as I think they clearly had—it follows that they were entitled, on a proper application by the fiscal, to interdict the pursuer from building in defiance of these rules. The only other point is, whether, as the pursuer thought fit to commit a breach of that interdict, the Magistrates were entitled to punish him by a fine for breach of interdict, and contempt of Court? I can see no reason for holding that they were not entitled to adopt that course; and indeed it seemed to be conceded at the bar that, if the defenders, were under the Police Act of 1862 really entitled to exercise the functions of a Dean of Guild Court, the pursuer could not succeed in any of the conclusions of his action; and as I am clearly of opinion that the jurisdiction of Dean of Guild has been to its full extent conferred by the statute upon the Magistrates of Hamilton, it follows that the defenders are entitled to be assoilzied from the whole conclusions of the action, with expenses.”

The interlocutor was acquiesced in.