Scottish Court of Session Decisions

By order, dated 13th December 1890, the Boundary Commissioners, acting under the Local Government (Scotland) Act 1889, determined and ordered that, subject to the provisions of the Act, so much of the parish of Melrose as was situated in the county of Selkirk should cease to be part of that parish, and should form part of the parish of Galashiels. This order was confirmed by Act of Parliament, and came into force on 11th June 1891.

Thereafter a question arose and was litigated between the parish of Galashiels and the parish of Melrose as to the effect of this order upon the liability of the parish of Melrose for the maintenance of paupers who, by birth or residence in the part of the parish which had been so transferred, had their settlement in the parish of Melrose at the date of the transfer. It was decided by the First Division of the Court, 12th May 1892, 19 R. 758, that the transfer by the Boundary Commissioners did not affect the liability of Melrose for parochial settlements acquired prior to the date of the transfer.

The first and second sub-divisions of section 50 of the Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50) are as follows:—“(1) Any councils and other authorities affected by this Act, or by any order or other thing made or done in pursuance of this Act, may from time to time make agreements for the purpose of adjusting any property, income, debts, liabilities, and expenses of the parties to the agreement so far as affected by this Act or such order or thing, and the agreement and any other agreement authorised by this Act to be made for the purpose of the adjustment of any property, debts, liabilities, or financial relations, may provide for the transfer or retention of any property, debts, and liabilities, with or without any conditions, and for the joint use of any property, and for the transfer of any duties, and for payment by either party to the agreement in respect of property, debts, duties, and liabilities so transferred or retained, or of such joint use, and in respect of the salary, remuneration, or compensation payable to any officer or person, and that either by way of a capital sum or of an annual payment.

“(2) In default of an agreement as to any matter requiring adjustment for the purposes of this Act, then, if no other mode of making such adjustment is provided by this Act, such adjustment may be made or determined by the Commissioners.”

By sub-section 3 of the same section it is provided—“The Commissioners, when making an adjustment under this Act, shall be deemed to be a single arbiter within the meaning of the Lands Clauses Consolidation (Scotland) Act 1845, and the Acts amending the same, and the provisions of those Acts with respect to an arbitration shall apply accordingly.”

Questions arose between the two parishes, inter alia, as to the adjustment of liabilities and income and expenses in connection with the administration of the poor-law, as affected by the order of the Boundary Commissioners. They failed to agree in adjusting their differences, and accordingly under sub-section 2 of section 50 the adjustment fell to be made and determined by the Boundary Commissioners. The Commissioners, on 4th August 1892, issued a provisional award, and after considering representations by the Parochial Board of Galashiels, on 10th November 1892 issued an award, the operative part of which is as follows:—“(First) We ordain the second parties (the Parochial Board of Galashiels) as from 14th June 1891 to assume responsibility for and relieve the first parties (the Parochial Board of Melrose) of all advances made since that date, or to be made in respect of paupers whose claim is derived from ( a) birth prior to 11th June 1891, within the area transferred from the parish of Melrose to the parish of Galashiels by our said order of 13th December 1890; or ( b) industrial residence within the said area for the statutory period prior to 11th June 1891. (Second) We ordain the first parties to pay to the second parties the sum of £300 per annum for the period of four years, the sum of £200 per annum for the four years thereafter, and the sum of £100 per annum for the four years years next again thereafter, the first payment to be at Martinmas 1892, the second at Martinmas 1893, and so on, interest at the rate of five per cent. to run on each of the said payments from the time at which it becomes due till paid; and (Third) We ordain the first parties to transfer to the second parties, as from 15th April 1892, for the use of paupers in the parish of Galashiels, the right to ten out of the twenty-eight beds belonging to the first parties in the Galashiels Combination Poorhouse, the second parties bearing as from that date the burdens effeiring to the additional share in the said poorhouse thus acquired, and being, on the other hand, entitled to one of the votes at present exercised by the first parties at meetings of the Committee of Management of the said Combination Poorhouse; and we declare that the provisions of this award shall be in full satisfaction of all claims competent to either of the parties against the other, and a final settlement of all financial questions that have arisen or that may arise between them in respect of the foresaid transference of area so far submitted to us in the foresaid claims and answers, and we ordain that each of the parties shall pay one-half of the cost of the stamp to be affixed to this award, and the party paying for the stamp is hereby found entitled to recover

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the half of the cost thereof from the other party, but quoad ultra we find no expenses due to or by either party.”

Thereafter the Inspector of Poor for the parish of Galashiels brought an action against the Inspector of Poor for the parish of Melrose and the Boundary Commissioners to have said award or decree-arbitral, or in any case the first head thereof, reduced as being ultra vires of the Commissioners.

The Inspector of Poor for Galashiels pleaded that “the said award or decree-arbitral being within the statutory powers of the Commissioners, the defenders ought to be assoilzied.”

Upon June 13th 1893 the Lord Ordinary ( Wellwood) assoilzied the defenders with expenses.

Opinion.—[His Lordship's narration of the facts of the case is given supra]—The pursuers the Parochial Board of Galashiels seek reduction on the ground that the first branch of the award was ultra vires of the Commissioners, the reason stated being shortly this—that it was contrary to and inconsistent with the express decision of the Court to which I have referred. At first sight the award seems startling, because it ordains the parish of Galashiels to do what the Court declared that legally it was not bound to do. But when the provisions of the 50th section are examined, I think that it will be seen that there is no real inconsistency between the award and the judgment. The judgment is a binding decision as to the legal rights of the parties. The award is intended to operate as an equitable adjustment on the assumption of Melrose's liability being as declared by the Court. Under sub-division (1) the two parishes might, if they had chosen, have agreed, inter alia, to transfer liabilities binding upon one or other of them by law, with or without conditions or payment by either party in respect of such transference. There was thus nothing to prevent the parishes from agreeing, that the liability resting upon Melrose in respect of parochial settlements acquired before the date of transfer, should be taken over by Galashiels, with or without payment of some equivalent by Melrose. They did not succeed in adjusting their differences, and accordingly it fell to the Commissioners, acting as an arbiter, to decide whether the parishes were bound, with a view to an equitable adjustment, to do what they might have done had they been able to agree. The matter truly submitted to the Commissioners was, whether in adjusting liabilities, income, and expenses which had been affected by the transfer, it was right and proper that Galashiels should take over the liability in question, and if so, on what terms and conditions. Now, such an agreement or reference was not inconsistent with legal liability resting at the outset with Melrose. On the contrary, that was a condition of the reference, and an element in favour of Galashiels to be considered in the adjustment.

The following passage from the opinion of the Lord President in the case of Gala shiels v. Melrose, 19 R. 762, shows that that judgment was not intended to preclude financial adjustment between the parties—‘It is obvious that such changes might require financial adjustment between the two parishes or other areas, the one of which was losing and the other acquiring the land in question. The portion of land to be disjoined might be so mixed up with the rest of the parish as regards common assets and common liabilities that simply to disjoin might leave a very unjust balance between the parish gaining and the parish losing, and it requires very slight stretch of imagination to picture cases in which such pecuniary adjustments would be required. The two parishes concerned therefore are authorised to make these adjustments for themselves if they can, and failing them the Commissioners have power, after they have made an order as to the boundaries, to follow that up by an another order effecting such an adjustment as appears appropriate in each case. All that is a comparatively simple proceeding in point of principle, for it relates entirely to the settlement of details, and it does not involve that the parties or the Commissioners are authorised to determine what are the rights of the two parishes apart from such adjustment.’

If it had appeared on the face of the proceedings that the Commissioners ordained Galashiels to accept liability without counterpart or consideration, the award might have been held to be ultra vires. But ex facie of the award it appears that what the Commissioners presumably consider a fair counterpart or equivalent is to be given by Melrose.

Now, by statute the award of the Commissioners is given all the finality of a decree-arbitral pronounced by an arbiter under the Lands Clauses Act, and it can only be impugned on the recognised grounds on which such decrees-arbitral are subject to review. The Commissioners may or may not have made such an adjustment or given Galashiels such compensation as this Court tota re perspecta might have awarded, but I take it that is not the province or within the power of the Court to interfere with the Commissioners' determination on that ground.”

The pursuer reclaimed, and argued—The matters about which parishes were to make agreements or failing agreement to get settled by the Boundary Commissioners were such as were “affected by the Act,” but in the previous case— Inspector of Galashiels v. Inspector of Melrose, May 12, 1892, 19 R. 762—liability for relief of paupers within the transferred area was held not to be affected by the Act; therefore this order of the Commissioners dealing with this matter was ultra vires. The mere fact that the liability held still to attach to Melrose was liability to pay money did not make it a financial matter under the Act.

Argued for respondents—This was a financial matter with which the Boundary Commissioners were bound to deal under the 50th section of the Act failing an agreement

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being made by the parishes themselves. That this was a question for the Commissioners was recognised in the case of Borthwick v. Temple, July 17, 1891, 18 R. 1190, the opinions in which were not affected as to this matter by those in the more recent case of Galashiels v. Melrose.

At advising—