Scottish Court of Session Decisions

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Cite as: [1884] SLR 21_295, [1884] ScotLR 21_295

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SCOTTISH_SLR_Court_of_Session

Page: 295↓

Court of Session Inner House Second Division.

Wednesday, January 16. 1884.

[ Lord Kinnear, Ordinary.

21 SLR 295

Walker

v.

Magistrates and Council of the City and Royal Burgh of Glasgow.

Subject_1Burgh
Subject_2Police
Subject_3Glasgow Police Act 1866 (29 and 30 Vict.c. 273), sec. 166
Subject_4Expense of Extinguishing Fire.
Facts:

The 166th section of the Glasgow Police Act provides that “the proprietor and occupier of every land or heritage within the city, in which a fire breaks out, shall be jointly and severally liable to pay to the treasurer as a contribution toward” the expenses of the fire brigade in extinguishing the fire “the sum of £15 sterling, or whatever less sum is equal to one-half of the said expenses.” Held that on a sound construction of this section a proprietor within the city who had paid a sum of £15 for the services of the fire brigade in extinguishing a fire which broke out in his premises, was further liable to pay a sum equal to one-half of the expenses of extinguishing the fire in a neighbouring house which belonged to him, and to which it had spread.

Headnote:

On the 21st February 1881 a fire broke out in a biscuit factory situated in Cleveland Street and Dorset Street, Glasgow, belonging to John Walker. It extended to a neighbouring tenement which also belonged to him, and which fronted Cleveland Street, and which was separated from the biscuit factory by a court 30 feet in breadth. The Glasgow Fire Brigade was summoned, and assisted to extinguish the fire. Thereafter the Magistrates and Council of the city of Glasgow, acting under the General Police and Improvement (Scotland) Act, 1862, Order Confirmation (Glasgow) Act 1877, in execution of the powers and duties of the Glasgow Police Acts 1866, 1872, 1873, 1875, and 1877, rendered Walker an account for the services of the fire brigade, and claimed from
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him the sum of £15, being the maximum sum chargeable under the 166th section, quoted infra. A further claim was made for £2, 6s. 2d. in respect of the fire having spread to the adjoining tenement in Cleveland Street.

The Glasgow Police Act 1866 (29 and 30 Vict, o. 273), in order to provide for the prevention and suppression of fires, by the 158th section requires the Board of Police constituted by the Act to provide and maintain fire-engines “for extinguishing fire,” … “and such fire-escapes and other implements for safety or use in case of fire as they consider necessary.”

The 159th section prescribes the duties of the inspector of fires, who is made responsible to the board for the maintenance of the said establishment in a complete state of efficiency, and is required to “make provision for securing a speedy attendance of firemen with engines and their appurtenances, and with fire-escapes and other implements, on every alarm of fire within the city.”

By section 163 the inspector and firemen appointed by him may take any measures which appear expedient for extinguishing or preventing the extension or diminishing the loss caused or likely to be caused by any fire, and protecting the lives and property of the inhabitants.

By section 166 of the Glasgow Police Act 1866 it is provided that “the said inspector [that is, the inspector of fires] shall make up and deliver to the Board a statement of the whole expense attending each fire, which shall include the wages payable to the firemen and other persons employed at it, the rewards or premiums which he recommends to be given to such firemen and other persons, the outlay incurred in taking them and the engines to the spot where such fire occurred, and in obtaining a supply of water, and other like expense, and such statement, in so far as approved of or as altered by the Board, shall be prima facie evidence of the amount of expenses attending the said fire.”

By section 166 it is provided that “the proprietor and occupier of every land or heritage within the city in which a fire breaks out shall be jointly and severally liable to pay to the treasurer, as a contribution towards such expenses, the sum of £15 sterling, or whatever less sum is equal to onehalf of the said expenses.”

Walker paid the sum of £15, but refused to pay the further sum of £2, 6s. 2d., and brought this action against the Magistrates to have it declared that they “were only entitled to levy and recover from the pursuer the sum of £15 sterling and no more, as a contribution towards the expenses of the Glasgow Fire Brigade in connection with a fire which broke out on or about 27th February 1881 in the premises then belonging to and occupied by the pursuer, and that it is ultra vires of the defenders to levy or recover from the pursuer the further sum of £2, 6s. 2d. sterling demanded by them, or any other sum or sums of money, as a contribution towards the expenses of the said fire brigade in connection with the said fire, or otherwise in respect thereof.” There was also a conclusion for interdict against the defenders recovering as damages, under the Glasgow Police Act, the sum of £2, 6s. 2d., or any other sum, or instituting proceedings before the Sheriff, as provided by the Act, for the recovery of the same.

The pursuer pleaded—“(1) Upon a sound construction of the 166th section of the Glasgow Police Act 1866, only the proprietor and occupier of any land or heritage within the city of Glasgow in which a fire originates are liable to contribute towards the expenses of the Magistrates and Council of the city of Glasgow attending each fire, and the proprietor and occupier of any tenement or tenements to which the same extends are not liable in any such contribution. (2) Under the Glasgow Police Act 1866 the pursuer is only liable in payment of the sum of £15 in respect of the services of the fire brigade on the occasion of the said fire, as proprietor of the premises in which the same broke out, and is not liable for any further sum as proprietor of the separate tenements to which the same extended, and the demands of the defenders being unwarranted by the said statute, illegal, and ultra vires, the pursuer is entitled to decree of declarator and interdict as concluded for. (4) Generally, the pursuer is entitled to decree in terms of the conclusions of the summons with expenses.”

The Magistrates and Council defended the action. They admitted that pursuer was proprietor of the Cleveland Street property, but stated that their claim in respect of the Cleveland Street property had been made against a Mr Lammie, who was factor for the property, and was as such the proprietor for the purposes of the statute.

They pleaded—“(1) The averments of the pursuer are irrelevant, and insufficient to support the conclusions of the summons; and (3) On a sound construction of the Police Act of 1866, Mr Lammie, as the proprietor of the tenement in Cleveland Street, in which the fire broke out, was bound to contribute to the expense of extinguishing the fire.”

Judgment:

The Lord Ordinary ( Kinnear) sustained the first and third pleas-in-law stated for the defenders, and assoilzied the defenders from the conclusions of the summons.

“ Note.—[After quoting the sections of the Act as above],—The pursuer maintains that under the 166th section the defenders are not entitled to exact a contribution of £2, 6s., 2d. for the services of the fire brigade in extinguishing a fire which had occurred in his house in Cleveland Street, because the fire did not originate in that tenement but extended to it from another subject also belonging to the pursuer, and in respect of which he admits his liability.

The argument is that the contribution provided by the 166th section is intended as a penalty upon the proprietors and occupiers of houses where a fire has originated, and, accordingly, that the term ‘breaks out,’ which is said to be synonymous with ‘originates,’ is used to exclude from the scope of the enactment any tenement which may have caught fire, not from any accident originating within itself, but from the sparks or flames which may have fallen upon it from another burning tenement.

But there is nothing in the words of the section or in the context to suggest that the contribution in question is intended as a penalty. It is a clause which in terms provided for payment of the expenses of extinguishing fires. The scheme of the Act for that purpose is perfectly clear and. intelligible. Where a fire occurs within the city, one half of the expense is to be borne by the owners and occupiers of the houses in which fires have broken out, and which have benefited; directly by the services of the fire-brigade, and

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the other half is to fall upon the rates, to which such owners and occupiers have contributed. Where it occurs without the city, the whole expense is to be borne by the owners and occupiers, who have made no contribution to the rates. There is nothing, therefore, in the expressed purpose of the enactment to suggest that the houses in which fire originates should alone be liable to contribute, and that others which may have obtained equal benefit from the services of the fire establishment should be exempt. Nor does it appear to me that there is anything in the words to support that contention.

The term ‘break out’ is certainly not synouymous with ‘originate,’ for a fire may or may not break out at the point where it originates; nor does it appear at all consistent with the manifest purpose of the enactment to require that no contribution towards the expense attending a fire shall be recoverable unless the origin of the fire shall be traced to the tenement which may have obtained the services of the fire establishment. It may be that on a critical analysis of the words they may be found, as the pursuer says, to denote a sudden issue or escape from a state of confinement, or, as it is expressed in the definition cited from Latham, something that ‘discovers itself with sudden effect.’ But the purpose of the section is not to define a particular mode in which a fire may have made itself manifest. And if, without adverting to such distinctions, the framers of the Act intended merely to describe the fact of a fire having taken place so as to require the aid of the firemen and engines provided by the board for its extinction, it is quite in accordance with the ordinary use of language to speak of it as a fire that has broken out, whether the flames have, in the stricter sense of the words, broken out from within or laid hold upon the tenement from without. If there be any degree of inaccuracy in the language employed, it is not such as to create any real uncertainty as to the meaning of the Act.”

The pursuer reclaimed, and argued—On a sound construction of the Act of 1866 he was not bound to contribute more than a sum of £15 for each fire or conflagration, and that sum he had paid. The further sum claimed was a sum applicable to a house to which the original fire had spread. Now (1) the word “fire” referred to that conflagration to which the fire brigade had been originally called; and (2) the expression “breaks out” meant “originates” or “begins.”

Counsel for defenders were not called on.

At advising—

Lord Craighill—Though all has been urged that could have been said in support of the case of the pursuer, I am of opinion that the interlocutor of the Lord Ordinary assoilzieing the defenders ought to be affirmed. The pecuniary value of this action is inconsiderable, but the question in controversy is of considerable importance to the defenders, the Magistrates and Council of the City of Glasgow. The matter in issue is the interpretation of the 166th section of the Glasgow Municipal Act of 1866. The pursuer contends that, according to the true reading, the house in which the fire begins is the only house the proprietor and occupant of which can be called upon to contribute towards the expenses that have been incurred by the fire department in extinguishing the fire; and he endeavours to maintain this conclusion, first, upon the ground that the word “fire” as used in the clause referred to means the conflagration to which the fire brigade had been called, however many the houses may be to which the fire extended; and secondly, that the words “every land or heritage within the city in which a fire breaks out” must be held to, mean the lands or heritage in which the fire originates or begins. For the reasons explained by the Lord Ordinary I am satisfied that this contention in both its branches is erroneous. There seems to me to be no warrant whatever for holding that the expenses of the fire or conflagration as a whole are those alone of which account is to be taken, as provided by the 165th section, a portion of which is to be recovered from the proprietor and occupier as provided by sec. 166. Reference was made to the 165th section as giving countenance to this interpretation, but I am disposed to think that this clause rather aids the construction adopted by the Lord Ordinary than that upon which the pursuer insists, and I may add that the practice which has been followed since 1866, when the Glasgow Municipal Act was passed, is not immaterial in this controversy. Where a fire has extended to several houses, the account for the expenses of each has been kept separate, and the owner of each has been dealt with as a contributory. As regards the interpretation of the words “breaks out,” the meaning put upon them by the pursuer appears to me to be unreasonably strained and limited. A fire may break out in a house though it be not the first which was on fire. This is according to the recognised and every-day use of the words. There seems to me to be no authority for holding that these words are only the equivalents of “originate” or “begin.” From section 166, taken by itself, and much more taken in connection with the other clauses, particularly sec. 167, the soundness of the Lord Ordinary's judgment is, I think, manifest. By sec. 167 the proprietor and occupier of every land or heritage beyond the city in which a fire breaks out, and to which any engine or firemen are sent, are to be liable to the whole expense attending the fire. The words in this clause, so far as their meaning is in dispute, are the same as those which occur in the 166th clause, and of course the same interpretation must be put on the words of the one clause which is put upon those in the other. In the result the pursuer's construction in the case of fires beyond the municipal boundaries would be to throw the whole expenses of extinguishing the conflagration to whatever number of houses the fire might extend, upon the owner and occupier of the house in which the fire had begun or originated. This is a view which I think cannot be seriously maintained. The owner of the first house is a sufferer through no fault of his own, as the owners of the other houses were, and to cast all the expenses arising from the efforts that were made to subdue the general conflagration upon him is obviously so unreasonable as of itself to be a consideration sufficient to determine what is the true interpretation of the words the meaning of which is now to be judicially determined.

For these reasons, as well as those which the Lord Ordinary has explained in his note, I concur in his judgment.

Lord Rutherfurd Clark and Lord M'Laren concurred.

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The Lord Justice-Clerk and Lord Young were absent.

The Court adhered.

Counsel:

Counsel for Pursuer— J. P. B. Robertson— Graham Murray. Agents— Cowan & Dalmahoy, W.S.

Counsel for Defenders— Lord Adv. Balfour, Q. C.— Lang. Agents— Campbell & Smith, S. S. C.
1884