Scottish Court of Session Decisions

In 1870 the burgh of Kirkintilloch adopted the General Police and Improvement (Scotland) Act 1862, and elected Commissioners of Police under said Act. By the Public Health (Scotland) Act 1867 the Commissioners of Police so elected are constituted the “local authority” for the purposes of

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that Act. The population of Kirkintilloch at the preceding census was 8029.

When the Acts above mentioned came into operation in Kirkintilloch in 1870 there was no system of public sewers in the burgh, and it was found necessary to provide such a system. The Commissioners of Police accordingly provided and laid them throughout the burgh at a cost of £4070, the whole procedure in connection with the construction of these sewers being taken under the General Police Act of 1862. To provide for the cost of constructing and maintaining said sewers the Police Commissioners levied an annual assessment under the Act of 1862 upon owners of heritable property within the burgh from the year 1878–79.

In consequence of legal proceedings at the instance of riparian proprietors, who complained of the pollution of streams through their lands by the outflow from these public sewers, the Commissioners of Police were compelled to undertake the construction of a system of sewage purification and disposal works at considerable cost. To enable them to acquire compulsorily the land required for these works, it became necessary to apply for a Provisional Order and a Provisional Order Confirmation Act, and these were accordingly applied for and obtained in the year 1884 under the provisions of the Public Health Act of 1867, and thereafter the land was acquired and the works constructed. The cost of procuring the said Provisional Order and Confirmation Act, and of purchasing land and constructing the purification works, and laying about nine miles of main intercepting and outfall sewers, &c., amounted to £19,575, and the expense incurred in constructing the public sewers under the General Police Act, as already mentioned, was £4070, making altogether the sum of £23,645. This sum was made up of the following items:—

1. Legal expenses in connection with procuring said Act	£2047	0	0
2. Price of land acquired in virtue of said Act, including wayleaves and damages, severance damage and several claims	5522	0	0
3. Cost of arbitration in connection with said acquisition, including legal expenses. .	1334	0	0
4. Purification works …	4642	0	0
5. Cost of intercepting sewers in other parts of the burgh toconnect with acquired land . .	5487	0	0
6. Charge of engineers applicable to execution of whole works as aforesaid …. .	543	0	0
7. Cost of former public sewers as already mentioned . .	4070	0	0
In all,	£23,645	0	0

Down to the year 1889 the Police Commissioners assessed only owners of heritable property within the burgh for sewage purposes under the Act of 1862. This mode of assessment having been objected to by certain owners, the present case (from which the above narrative has been taken) was presented in order to obtain the judgment of the Court on the question, whether the asessment necessary to defray the above expenditure should be levied on owners or occupiers?

The parties to the case were (1) the Commissioners of Police of the burgh of Kirkintilloch under the General Police Act 1862, who as such were the “local authority” of the burgh under the Public Health Act of 1867; (2) John M'Donald and others, owners of heritable property within the burgh; and (3) George Brown and others, occupiers of heritable property within the burgh.

The provisions as to assessments forsewers under the General Police Act of 1862 are contained in clauses 96 to 100 thereof inclusive. Under that Act the said assessments fall to be paid by the owners of heritable property. No assessment whatever, either for construction or maintenance of sewers, is leviable under said Act upon the occupiers of heritable property. The said Act contains no provision under which application can be made for the compulsory acquisition of land.

Sec. 94 of the Public Health Act 1867 provides—“With respect to burghs having a population of less than ten thousand according to the census last taken, and not having a local Act for police purposes, and with respect to parishes exclusive of any parts of such parishes as are situated within the district of any local authority other than the parochial boards of such parishes. … (2) All charges and expenses incurred by the local authority in executing this Act or any of the Acts hereby repealed, and not recovered as hereinbefore or after provided may be defrayed out of an assessment to be levied by the local authority along with but as a separate assessment from any one of the assessments hereinafter mentioned in this section—that is to say, the said assessment shall be assessed, levied, and recovered in like manner and under like powers (which powers are hereby given and are declared to extend over the whole and every part of the district of the local authority) as the prison assessment or police assessment, as the local authority shall resolve, where the local authority is a town council or police commissioners, or trustees acting as police commissioners; or if there be no prison or police assessment, an assessment levied in like manner as is hereinafter authorised where the local authority is a parochial board; the assessment for the relief of the poor, where the local authority is a parochial board, or where there is no such assessment, by an assessment levied in such manner as an assessment might have been levied for the relief of the poor.”

The case, inter alia, set forth—In the burgh of Kirkintilloch there is no prison assessment leviable. Kirkintilloch is not a burgh as defined by sec. 4 of the Prisons (Scotland) Administration Act (23 and 24 Vict. cap. 105), but fell to be and was in fact assessed by the Commissioners of Supply as a landward part of the county of Dumbarton, and the prison assessment was levied upon proprietors from the passing of said Act until the passing of the Prisons

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Act 1877. Under section 84 of the General Police and Improvement (Scotland) Act 1862, the first parties assess all occupiers of lands or premises within the burgh in the sums necessary to be levied for the “police purposes” of that Act. By that section it is provided that the assessment just mentioned shall, for the purposes of that Act, be called the “police assessment.” The burgh of Kirkintilloch is a special police district of the county of Dumbarton, under the County Police Act (20 and 21 Vict. c. 72), and by virtue of that Act there is a police assessment leviable by the Commissioners of Supply within the burgh upon owners of property.

The second parties at first objected in toto to the mode of assessment proposed by the first parties, and maintained that the whole of the sewage expenses should be defrayed by an assessment on occupiers. They subsequently modified their contention, and admitted that £4070—the expense of providing the former public sewers which had been incurred under the Act of 1862—should be levied on owners, but maintained that the expenses set forth in the first six items of the detailed statement above quoted, amounting to £19,575, was leviable on occupiers only in terms of the Act of 1867. The third parties maintained that the course adopted by the first parties was correct.

Argued for the second parties—The debt of £19,575 incurred in connection with the sewage purification and disposal works was incurred under the Act of 1867, under which the application for compulsory powers to acquire the land necessary for the scheme had been made. The mode of assessment prescribed by sec. 94 of that Act in respect of such burghs as Kirkintilloch must therefore be followed. That clause provided for an assessment to be levied by the local authority along with either the prison assessment or the police assessment. When both these assessments were leviable by the local authority they had an option with which to levy the new assessment, but where only one of these assessments was leviable then the local authority were bound to levy the new assessment along with that assessment. In Kirkintilloch there was no prison assessment leviable by the Commissioners of Police (who were the local authority for the burgh under the Act of 1867), but there was a police assessment leviable by them, and therefore the new assessment must be levied along with this police assessment. As the police assessment was leviable on occupiers, the new assessment, which was to be levied in like manner, must also belevied on occupiers—Act of 1862, sec. 84.

Argued for the first and third parties—It was true that the power to acquire lands compulsorily could only be obtained under the Act of 1867, but it did not follow that when such power was obtained the assessment necessary to defray the expense of acquiring the land and constructing the sewage works was to be levied under that Act. If the necessary land could have been obtained by consent there would have been no need to proceed under the Act of 1867, and the fact of such an application having been necessary should not be held sufficient to alter the incidence of the taxation, which it appeared to be the policy of the Legislature to levy on owners—Act of 1862, sections 96, 97, 196. Under the Act of 1862 pavement-rates as well as sewer-rates were laid on owners, the apparent reason being in both cases that these works were looked upon as heritages attached to houses. The effect of the 94th section of the Act of 1867 was not to interfere with the incidence of the taxation, but to provide like powers for its levying and recovery as those under which the prison and police assessment were levied. Even assuming that section 94 of the 1867 Act was to regulate the incidence of the rate, it did not follow that the second parties' contention was sound. The term “police assessment,” which was an equivocal term, should in the Act of 1867 be construed in its strict sense as meaning an assessment for the maintenance of the police force. If that view were correct the Commissioners of Police of the burgh of Kirkintilloch levied neither a “prison” nor a “police assessment” in the sense of section 94 of the Act of 1867, and the new rate would fall to be levied under the third alternative provided in that section in the same way as the poor-rate, viz., half on owners and half on occupiers.

At advising—