Scottish Court of Session Decisions

The Special Water Supply District of Duntocher and Dalmuir was formed in 1873. The district lay in the eastern part of the county of Dumbarton, and embraced the whole of the police burgh of Clydebank.

Section 81 of the Local Government (Scotland) Act 1889 provides, inter alia, as follows—“With respect to special drainage districts or special water supply districts the following provisions shall have effect:—(1) Where a special drainage district or special water supply district has been formed in any parish under the Public Health Acts, the district committee may, subject to regulations to be from time to time made with the consent of the county council, appoint a sub-committee for the management and maintenance of the drainage or water supply works, and such subcommittee shall in part consist of persons, whether members of the district committee or not, who are resident within the special drainage district or special water supply district. (2) Where a special drainage district or special water supply district is partly within a county and partly within a burgh or police burgh, the sub-committee appointed under the immediately preceding sub-section, and such number of the town council or police commissioners (as the case may be) of such burgh or police burgh as failing agreement the Secretary for Scotland may determine, having regard to all the circumstances of the case, shall be charged with the management and maintenance of the drainage or water supply works within such special district, and the determination of the Secretary for Scotland may provide for the regulation of the proceedings and for the allocation and payment of the expenses incurred under this sub-section.”

On 18th June 1890 the Eastern District Committee of the County Council of Dumbarton appointed a sub-committee in terms of sub-section (1), above quoted, for the management of the Special Water Supply District of Duntocher and Dalmuir.

Thereafter, as the parties failed to agree as to the number of police commissioners to be added to said sub-committee, application was made to the Secretary for Scotland.

On 18th February 1891 the Secretary for Scotland issued the following determination:—“The police burgh of Clydebank shall be represented on the sub-committee charged with the management and maintenance of the water supply works within the Duntocher and Dalmuir Special Water Supply District in the proportion of eight members, being police commissioners appointed by the police burgh, to six members appointed by a district committee of the County Council of Dumbartonshire.” In pursuance of this determination a Committee of Management for the special water supply district was appointed, consisting of six members selected by the Eastern District Committee of the County Council and eight of the Police Commissioners of the burgh of Clydebank.

The present action was raised by the Eastern District Committee of the County Council of Dumbarton and certain ratepayers residing in that district againstHugh Young and others, the members of the Special Water Supply District Committee, the Police Commissioners of Clydebank, the Secretary for Scotland, and the County Council, for reduction of the above-mentioned determination by the Secretary for

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Scotland, and for declarator, inter alia—“(1) That the Secretary for Scotland has and had no power to make or issue the determination above referred to, and that he has no power to fix or determine the proportion which the members of the body or committee charged under section 81, sub-section 2, of the Local Government (Scotland) Act 1889, with the management and maintenance of the water supply works in said special water supply district, who are police commissioners of said burgh, shall bear to the number of the members of said body or committee who are appointed by the said Eastern District Committee, but that he is only entitled, in virtue of said section 81, sub-section 2, of said Act, failing agreement between the said County Council and the said Commissioners, or between the said Eastern District Committee and the said Commissioners, to fix the number of Commissioners of the said burgh who are to act along with the members of said body or committee (if any) appointed by the said Eastern District Committee, under section 81, sub-section 1, of said Local Government Act, in managing and maintaining the water supply works of the said special water supply district, and to provide for the regulation of the proceedings necessary to fix and determine said number, and for the allocation and payment of the expenses incurred in fixing and determining said number, and that he has no power to regulate the proceedings of the said body or committee charged as aforesaid, or to provide for the allocation or payment of the expenses, if any, which said body or committee charged as aforesaid may incur. … (9) That the said body or committee, consisting of the following six persons named by the said Eastern District Committee, viz., … and the following eight police commissioners of said burgh, viz., … has no power, jurisdiction, or authority as to the management or maintenance of the special water supply works within the said special water supply district, or the levying of assessments from the ratepayers therein, or the disposal of the proceeds of said assessments, or otherwise under any of the Acts foresaid.”

Defences were lodged by Hugh Young and others, the members of the Special Water Supply District Committee, and by the Police Commissioners of Clydebank, and also by the County Council. The last named did not oppose the above conclusions of the summons.

The defenders, the members of the Special Water Supply District Committee, and the Police Commissioners of Clydebank, pleaded, inter alia—“(2) The said determination being within the powers conferred on the Secretary for Scotland by the Local Government (Scotland) Act 1889, decree of reduction and declarator should be refused with expenses.

On 18th February 1893 the Lord Ordinary ( Kyllachy) pronounced this interlocutor—“The Lord Ordinary having considered the cause, reduces, decerns, and declares in terms of the reductive conclusions of the summons with regard to the first declaratory conclusion of the summons: Finds, decerns, and declares that the Secretary for Scotland has and had no power to make or issue the determination recited in the first reductive conclusion, and that he has no power to fix or determine the proportion which the members of the body or committee charged under section 81, subsection 2, of the Local Government (Scotland) Act 1889 with the management and maintenance of the water supply district, who are police commissioners of the burgh of Clydebank, shall bear to the number of the members of said body or committee who are appointed by the said Eastern District Committee, but that he is only entitled, in virtue of said section 81, subsection 2 of said Act, failing agreement between the said County Council and the said commissioners, or between the said Eastern District Committee and the said commissioners, to fix the number of commissioners of the said burgh who are to act along with the members of said body or committee (if any), appointed by the said Eastern District Committee, under section 81, sub-section 1 of said Local Government Act, in managing and maintaining the water supply work of the said special water supply district, quoad ultra dismisses said conclusion, and decerns: Finds, decerns, and declares in terms of the 9th declaratory conclusion of the summons, and with regard to the remaining declaratory conclusions, supersedes consideration thereof in hoc statu.

“ Opinion.—The leading object of this action is to set aside a certain determination of the Secretary of Scotland, under section 81 of the Local Government Act 1891, as being disconform to and unauthorised by the statute. The determination complained of has reference to the constitution of the sub-committee, charged under section 81 of the Act, with the maintenance and management of the water works within the Duntocher and Dalmuir water supply district—a district formed in 1873 out of the landward parish of Old Kilpatrick in Dumbartonshire, but now comprising within its limits the police burgh of Clydebank, formed in 1886 under the General Police Act of 1862. The complaint is that the Secretary for Scotland, being empowered to fix the number of police commissioners of Clydebank who should sit with the county representatives on the sub-committee, has taken it upon himself to determine that the burgh of Clydebank ‘shall be represented on the sub-committee charged with the management and maintenance of the water supply works within the Duntocher and Dalmuir special water supply district, in the proportion of eight members, being police commissioners appointed by the police burgh, to six members appointed by a district committee of the County Council of Dumbartonshire.’

It is maintained by the pursuers, who represent the County District Committee, that this is not what the Act authorised. They point out that the total number of police commissioners under the Act of the burgh of Clydebank is twelve, and

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that, on the other hand, there is no limit to the number of the representatives whom the County Council Committee, from their side, may place on the subcommittee. Under the Act, therefore, they say the county element was secured in a preponderance. It was so, even if the Secretary for Scotland should determine that the whole twelve of the Clydebank commissioners should be members of the sub-committee. According, however, to the determination, all this has been reversed. The burgh secures the preponderance, and does so by what is in effect a limitation of the number of representatives to be appointed by the County Committee. This, it is said, is entirely unauthorised by the Act. What was intended by the Act was not that the burgh representatives should obtain control of the sub-committee, but that they should be represented upon it; not that the Secretary for Scotland should define the composition of the sub-committee, but that he should fix the number of burgh representatives; not that he should limit the powers of the county subcommittee, but that he should say how many of the twelve police commissioners should sit and vote with the county representatives on the sub-committee.

I have come, somewhat reluctantly, to the conclusion that there is no good answer to this argument. I think the Secretary for Scotland has probably overlooked the very limited character of his powers; or it may be that he has overlooked the fact that there is a maximum number of police commissioners, and no similar limit on the other side. In any case, it appears to me that he has gone beyond his powers. He might have determined that the whole twelve of the police commissioners might be appointed to the sub-committee, but he was not entitled to determine that whatever number of them were so appointed the County District Committee should appoint a number one-fourth less. In short, he was not in my opinion entitled to interfere with the County District Committee at all; and it is because he has attempted to do so that the present difficulty has occurred.

I shall therefore so far find for the pursuers, giving decree in terms of the reductive conclusions of the summons, and so much of the declaratory conclusions as properly follow.

The next object of the action is to have it declared that on the sound construction of section 81 the Secretary for Scotland has no power to regulate the proceedings of the sub-committee constituted under that section, but has merely power to regulate the proceedings connected with the fixing of the number of burgh representatives. I am not prepared to affirm this conclusion. As at present advised, I am disposed to think that the regulations which the Secretary for Scotland is to issue are regulations applicable to the proceedings of the subcommittee. But, on the other hand, I am not prepared to say that under the power to regulate those proceedings is included a power to prescribe functions and define powers. The definition of those functions and powers, I rather apprehend, must be found in the Act. Accordingly, if I were obliged to deal with this part of the summons, I should be very doubtful whether I could pronounce any judgment practically useful to the parties. As it is, however, it seems to me that the question is altogether too hypothetical to be submitted to a court of law. The Scottish Secretary has, hitherto at least, declined to issue any regulations, and he may never do so. When he does so it will be time enough to consider whether they are open to challenge. In the meantime I think I shall best serve the parties by simply dismissing this part of the declaratory summons.” …

The defenders, the members of the Special Water Supply District Committee, and the Police Commissioners of Clydebank, reclaimed, and argued—Subsections (1) and (2) of section 81 of the Local Government Act must be read together, and so read, their sense was, that in the event of differences arising, the Secretary for Scotland should have power to settle the respective proportions of burgh or county representation on a special water supply district committee. A contrary construction of these sections would leave it in the power of a district committee of the county council to nominate a sub-committee outnumbering the whole body of police commissioners of a burgh, and thus enable the district committee to secure a preponderance of representation upon the special water district. In many cases this would be unfair, as the burgh was frequently, as in the present case, much the most populous and important part of the special water district.

The pursuers were not called upon.

At advising—