Scottish Court of Session Decisions

The village of Midcalder, situated in the parish of Midcalder, contained at the date of this action a population of 657, the population of the whole parish being 1698. The population was insufficient to make the inhabitants of the village to adopt the General Police Act (the Act 30 and 31 Vict. c. 101). The Public Health (Scotland) Act 1867, sec. 5, constitutes the parochial board of the parish the local authority thereof for executing the Act in such parishes. Under sections 16 to 30 of the Act the parochial board, as the local authority, are clothed with extensive powers in the way of prevention of nuisances, and for proceeding against the authors of the nuisance, to ordain them to remove it, or to pay the cost of its removal by the local authority.

Section 8 provides—“The local authority may, and where it shall be thought necessary by the Board [of Supervision] for the purposes of this Act, the local authority shall, appoint a sanitary inspector or inspectors … and make byelaws for regulating the duties of such inspectors.”

For some years prior to 1878 the Parochial Board of Midcalder had employed a scavenger to clean the streets. He was paid partly by themselves and partly by the Road Trustees of the district. In 1878, after the employment had been intermitted for a short time, the Board resolved that an arrangement should again be made for the purpose with the surveyor of roads, the sum to be expended by the Board not to exceed 3s. 9d. per week, and it being understood that owners of property were not to be relieved of their responsibility under the Public Health Act.

This was an action by certain ratepayers, who were proprietors and tenants of property in the landward part of the parish, against the Parochial Board for declarator that the defenders were not entitled, as Parochial Board or local authority of

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the parish, to incur expenses in connection with cleaning the streets of the village, or to levy an assessment over the pursuers' property, or farms tenanted by them, for such expense; and further, that they were not entitled to incur certain sums charged in their accounts for the years 1879 to 1883 under the head “cleaning streets.”

The pursuers averred that the resolution of the defenders was ultravires, that there was no nuisance to remove, and if there had been, that the authors ought to have been made to remove it. They further averred that the defenders were not empowered by the Public Health Act, and had no power apart from its provisions to remove nuisances at the expense of the whole locality, nor interfere with the condition of the streets, nor undertake cleaning operations elsewhere within the parish, save when the condition of affairs amounted to a nuisance.

They pleaded—“The defenders not being entitled, either by statute or at common law, to incur the expenses or to levy the assessments in question, the pursuers are entitled to decree of declarator as craved with expenses.”

The defenders averred that the employment of a scavenger was necessary, and that when for a time it was intermitted, the medical officer of health reported that danger would arise to the health of the parish if the cleaning was not at once renewed; that the scavenger's appointment was made under an arrangement with the Road Trustees, and with the sanction of the Board of Supervision.

They pleaded—“(1) The statements of the pursuers are irrelevant, and insufficient in law to support the conclusions of the summons.”

The Lord Ordinary ( Lee) sustained the first plea-in-law for the defenders, and assoilzied them from the conclusions of the action.

“ Opinion.—I am of opinion that in parishes such as Midcalder, where the parochial board is constituted the local authority in terms of the Public Health Act 1867, and there is a considerable village in the district placed under their authority for the purposes of the Act, it is not beyond the power of such local authority, acting under the supervision of the statutory board, to direct the inspector to see to the cleansing of the streets of the village, and if necessary to authorise the employment of a scavenger for the purpose. It is true that the statute contains no express enactment that the local authority shall have such power. It is also true that the Act contains a number of special provisions in Part II. for the removal of nuisances. But this is not, in my opinion, conclusive in favour of the pursuers' contention that the local authority has no power to authorise the employment of a scavenger. The question is, whether this is within the purposes of the Act which they are appointed to execute?

The statute purports to be ‘for removal of nuisances, for prevention of diseases, and for sanitary purposes generally.’ The terms in which the local authority is appointed (sec. 5), and is required to appoint sanitary inspectors, and authorised, with the sanction of the Board, to make bye-laws for regulating the duties of such inspectors (sec. 8), and appointed to take measures for the general prevention of disease (sec. 26, 39, et seg., and particularly 41), seem to me to show that it was not beyond the purpose of the statute that the local authority should be enabled to take all reasonable measures for sanitary purposes. If the employment of a scavenger is not expressly provided for, I think it fair to presume that such a measure, and other steps short of providing hospitals and erecting water-closets or privies, were not considered to require special mention, but were contemplated as sufficiently provided for by the general powers of appointing inspectors and regulating their duties.

In the absence of any allegation that the resolution requiring the chairman and inspector to make the necessary arrangements for cleaning the streets has not been sanctioned by the Board of Supervision, and of any conclusion directed against the Board of Supervision, I sustain the first plea-in-law for the defenders, and assoilzie them from the conclusions of this action.”

The pursuers reclaimed, and argued—There was no enactment in the Public Health Act (under which the scavenger's appointment was made) authorising the Parochial Board at their own hand to appoint such an officer, and generally to assess the parish for his wages. All that the Act empowered them to do was to put down any existing nuisance, and to do it at the expense of the authors of the nuisance.

At advising—