Scottish Court of Session Decisions

In 1887 the Town Council of the burgh of Lanark entered into an arrangement with the Parochial Board of the Parish of Lanark, the latter being the local authority under the Public Health Acts for that part of the parish of Lanark lying outwith the burgh, to provide a joint hospital. A site was purchased, and a hospital erected thereon. The parties, in 1889, entered into an agreement setting forth their respective rights, interests, and liabilities in the hospital. The agreement was entitled as being between “the Provost, Bailies, and Town Council of the Royal Burgh of Lanark, being the local authority under the Public Health Act of 1867, on the one part, and the Parochial Board of the parish of Lanark, being the local authority of the said parish under the said Act, on the other part and the preamble ran as follows:—“The said parties, considering that it had become necessary for them to provide for their respective districts an hospital or place for the reception of persons suffering from sickness, fever, and infectious diseases or disorders; that, under the powers conferred upon them by section thirty-nine of the said Act, they resolved to combine for the purpose of providing a common hospital,

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which should be the hospital for each party.” The management of the hospital was vested in a committee, composed of members of both the contracting parties, to be called “The Lanark Fever Hospital Joint Committee.” By the second article of the agreement it was provided:— “Second. Each of the parties shall be entitled to the use, for persons from their respective districts, of one-half the number of beds, and, in the event of either of the parties requiring a larger number of beds, and these being unoccupied, such party shall be entitled to use such other unoccupied beds as they shall require.” It was further provided by the eighth article that “each party shall bear one-half of the cost of the site, of erecting and maintaining the buildings, and of the salary of the permanent clerk.” By the 9th clause it was provided that “the cost of removal to and from, and the nursing and maintenance of each person in the hospital, shall be defrayed by the authority from whose district the patient shall have been received, as the same shall be fixed by the committee.”

In virtue of the Local Government (Scotland) Act of 1889, the County Council are vested with the whole powers and duties of the local authority, under the Public Health Acts, of parishes so far as within the county; and by section 17 (2) of the Act, the District Committee are to be the local authority under the Public Health Acts, with all the rights, liabilities, and duties of the County Council, within each district of a county constituted in terms of the Act. With reference to the application of the Act to Lanarkshire, it was enacted that the Upper Ward should be a district for public health purposes. Within the area controlled by the Upper Ward District Committee there lies the landward part of the parish of Lanark, and accordingly the Upper Ward District Committee, as successors of the parochial board, furnished the members to the Hospital Committee previously drawn from the parochial board, and made use of the beds in the hospital, the number of which is eight. There are 22 parishes within the area administered by the District Committee, comprising a population of 38,500, the population of the district administered by the Town Council of Lanark being 4599, and that of the landward part of the parish 2531.

The District Committee having found the joint hospital too small for the accommodation of patients from their district, became desirous of enlarging it, to which the Town Council objected.

Accordingly a special case was raised by, first, the Town Council of the Burgh of Lanark, and second, the District Committee, for the purpose of fixing the rights of parties under the agreement of 1889.

The question for the consideration of the Court was—“(1) Are the second parties entitled, without the consent of the first parties, to send patients for treatment to the said joint hospital from any part of their district; or, is the right of the second parties to send patients limited to that part of the parish of Lanark lying outwith and beyond the parliamentary area of the burgh of Lanark?” The second parties maintained the former, and the first parties the latter proposition.

Argued for the second parties—The agreement was to the effect that the different local authorities were to send patients from their “districts.” The County Council came in place of the parochial board, taking its rights and liabilities, and carrying out its contracts. The “district” under the control of one of the parties to the contract had been enlarged, but that was no reason why the interpretation of “district” should be changed so as to limit it to a fraction of the district now controlled by this local authority. The result of thus limiting the meaning would be that the Act of 1889 would create an anomaly by carving out an area different from any of the units contemplated. The Act spoke all through, not of “parishes” but of districts—Local Government Act 1889, secs. 90, 101, sub-sec. 2. There was nothing inequitable in extending the area, since the contracting parties were each entitled only to half the number of beds in the hospital unless any of the remaining beds were vacant.

Counsel for the first parties were not called upon.

At advising—