Scottish Court of Session Decisions

The Glasgow City and District Railway Act 1882 (Act 45 and 46 Vict. c. 216), sec. 37, provides—“For the further protection of the Lord

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Provost, Magistrates, and Council of the city of Glasgow as a municipal corporation, and as trustees or commissioners acting in execution of the several public and local and personal Acts by which any powers, jurisdiction, or authorities are conferred on them (in this section called ‘the corporation’), the following provisions, in addition to the provisions contained in the last preceding section, shall have effect and be binding on the company—that is to say. … ( b) where the railways and works and operations of the company are carried on upon the surface of the ground, the company shall not at any one time, without the consent of the corporation, interfere with or occupy, for the purposes of the said railways and works and operations, a greater extent of road or street surface than one hundred and fifty lineal yards. In every case in which the company interfere with said road or streets, the company shall, to the satisfaction of the corporation—(1) Restore the road or street, so interfered with, to its original level; (2) Cause the formation of the road or street to be properly consolidated; (3) Make good the paving and metalling of the road or street; (4) Provide and maintain all requisite communications and accesses for foot-passengers to and from the houses and other buildings in the streets or roads so interfered with.”

Section 39 of the same Act provides—“In constructing the railways the company shall restore the portions of the carriageway of any street to be from time to time closed by them for traffic for the purposes of the works, within three months from the day upon which such portions shall respectively be so closed, and they shall be liable to a penalty not exceeding £20 for every day after the expiration of the said period during which such portions respectively shall not be so restored, and such penalty shall be recoverable with costs in the Court of the Sheriff of the County of Lanark, on summary application by all or any of the proprietors or tenants in that part of the street which is opposite the respective portions which shall not be restored.”

The Summary Jurisdiction (Scotland) Act 1881, sec. 3 (44 and 45 Vict. cap. 33), provides—“The provisions of the Summary Jurisdiction (Scotland) Acts 1864 and 1881, hereinafter called the Summary Jurisdiction Acts, shall apply to all summary proceedings as enumerated and described in the third section of the Summary Procedure Act 1864, and to all proceedings of the like nature which by any future Act are directed or authorised to be taken summarily or under the provisions of the Summary Jurisdiction Acts.”

On 8th January 1884 an action for the recovery of penalties under the 39th section of the Glasgow City and District Railway Act 1882, was brought into the Sheriff Court of Lanarkshire under the provisions of the Summary Jurisdiction (Scotland) Acts 1864 and 1881, against the said Glasgow City and District Railway Company by the trustees of the deceased Robert Hutchison, auctioneer in Glasgow. On the 28th of January 1884 the Sheriff-Substitute ( Guthrie) convicted the company of the contravention charged, and found them liable in the modified penalty of £256, one-half to be paid to the complainers, and the other half to the inspector of poor for the benefit of the poor of the Barony Parish Glasgow.

The case arose under the following circumstances — The railway company in the course of constructing the railway, which they were authorised to do by their said Act, had, in the month of May 1883, or at least prior to the 1st day of June 1883, for the purposes of construction, closed for traffic a portion of the carriageway of Holland Street opposite to the property belonging to Hutchison's trustees. The purpose for which the street was closed was that the company might sink a shaft from the surface for the convenience of their workmen in removing the earth, &c., dug up in constructing part of the underground railway track. The railway company were by their Act bound under a penalty to restore the portions of the carriageway which they had closed for traffic within three months of the time that they had first closed the carriageway. The railway company had in closing the carriageway left a space of the carriageway, viz., 12 feet in breadth, at the side of the street. Hutchison's trustees, whose property lay opposite the portion of the street so closed, had brought an action against the railway company in the Sheriff Court for recovery of the penalties allowed under the company's Act of 1882. That action the Sheriff had dismissed without expenses on the 2d January 1884, on the ground that under the company's Act the only way in which the penalties could be recovered was by “summary application” under the provisions of the third section of the Summary Jurisdiction (Scotland) Act 1881. The present action was then brought under that Act, and conviction obtained as above stated. In fixing the penalty at £256 the Sheriff-Substitute gave at the rate of £2 per day for the period beyond the three months up to the date of the action during which the obstruction continued, and appropriated the sum under sec. 142 of the Railway Clauses Consolidation (Scotland) Act 1845. The agent for the railway company had appeared and stated the following objections to the case proceeding—“(1) Lis pendens, in respect that the appealing days against the Sheriff-Substitute's interlocutor of 2d January current dismissing an ordinary action for the same penalties by the complainers (the respondents) against the respondents (the appellants) were not yet expired. (2) That it was incompetent to sue for the penalties imposed by section 39 of the respondents' (the appellants') Special Act, 45 and 46 Vict. cap. 216, in the forms prescribed by the Summary Jurisdiction (Scotland) Acts 1864 and 1881, but that the same should be sued for by summary application to the Sheriff's ordinary jurisdiction, as prescribed by the Act of Sederunt, 10th July 1839, and recognised by sec. 147 of the Railway Clauses Consolidation (Scotland) Act 1845. (3) Defect of jurisdiction by reason of such incompetency.”

The Sheriff repelled these objections.

The railway company took a Case.

The questions of law for the opinion of the Court of Justiciary were—“(1) Whether, in the plea of lis pendens was well founded, and the circumstances stated, should have received effect? (2) Whether it was competent to bring the cause under the provisions of the Summary Jurisdiction (Scotland) Acts 1864 and 1881? (3) Whether the fact that the party complained against was an incorporation rendered the application of the Summary Jurisdiction Acts impracticable or illegal? (4) Whether,

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under the provisions of section 39 of the Special Act founded on, it was necessary, before the appellants could incur the penalty therein specified, that for a greater period than three months they should occupy the carriageway of the street opposite the respondents' property to such a breadth or extent as would entirely prevent carriage traffic from passing that point; or whether it was sufficient to render the appellants liable in the penalty that they, as in the present case, for a period exceeding three months, occupied somewhat more than half of the breadth of the carriageway of the street there, while leaving clear a part of the carriageway 12 feet wide, next the property of the respondents, for vehicle and other traffic, besides the footpath?”

Argued for the appellants— Preliminary pleas — This action should not have been brought under the Summary Jurisdiction Acts, but by a summary action in the Sheriff Court. The words “summary application” in section 39 of the Glasgow City and District Railway Act did not imply that the Summary Jurisdiction Act should be used to enforce penalties against the railway company. In the Summary Jurisdiction Act of 1881 the penalty of imprisonment was made to apply to all cases where penalties were sought to be enforced, but it would be impossible to imprison a corporation such as the railway company. That was sufficient to show that that Act was not applicable to the appellants.— Magistrates of Portobello v. Magistrates of Edinburgh, November 9, 1882, 10 R. 130. On the merits—Under their Act the company were entitled to close up the carriageway of any street for traffic, under section 37, sub-section B, if not greater in length than 150 yards, without express permission from the magistrates; and if they kept the whole breadth of the street closed for longer than three months they were liable in the penalty named in the Act; but if they only closed part of the street so that traffic could be carried on, they could keep the remaining part of the carriageway closed so long as is necessary.

Argued for the respondents — Preliminary Pleas—The words “summary application” in the company's Act meant an application to the Sheriff under the Summary Jurisdiction Acts, which allow persons who are aggrieved to sue for penalties in the most rapid way. To prevent the recovery of penalties imposed under any special Act otherwise than by the provisions of the Summary Jurisdiction Acts, that special Act must contain certain words which are inconsistent with the provisions of the Jurisdiction Acts, but that was not so here; the words in fact being “by summary application.” It was no reason to say that because imprisonment was made to apply to all cases in the Jurisdiction Act, penalties could not be sought against a company under it. The penalty could be imposed upon the company, and means could be found in the Act for making it effectual against them. Imprisonment was no test of what actions are to be brought under the Jurisdiction Act. On the merits — The words of the Act of Parliament were quite plain. The words “portions of the carriageway” meant any portion whatever, either of length or breadth of the street; and if the company kept any part whatever of the carriageway closed for a longer period than three months they were liable in the penalty imposed upon them in the Act.

At advising—