Scottish Court of Session Decisions

Section 37 of the Education Act 1872 provides—“In performing their duties under this Act, it shall be lawful for any school board to acquire by purchase or otherwise sites for schools, teachers’ houses, and gardens, and to enter into contracts for the erection of schools and teachers’ houses thereon, and to have such schools and teachers’ houses erected, and also to acquire by purchase, or take on lease, any existing schools and teachers’ houses, together with any land used, or suitable to be used, in connection therewith, not being schools, houses, and land of any description to which the provisions of this Act in the two immediately succeeding sections, regarding the transference of existing schools, are applicable, and from time to time to improve, enlarge, and furnish any school of which they have the management, and all charges and expenses consequently incurred by them shall be paid out of the school fund. And for the purpose of the purchase by the school board of any land or building, in pursuance of the provisions of this Act, the clauses of the Lands Clauses Consolidation (Scotland) Act 1895, with respect to the purchase of lands by agreement, shall be incorporated herewith, and the expression ‘the promoters of the undertaking’ in the said Act shall, for the purposes of this enactment, mean the school board of any parish or burgh.

[The part of the clause printed in italics was repealed by the Statute Law Revision Act 1883].

By section 31 of the Education (Scotland) Act 1878 it is, inter alia, provided that “With respect to the purchase of land by school boards for the purpose of the Education (Scotland) Acts 1872 and 1878, the following provisions shall have effect:—(1) The Lands Clauses Consolidation (Scotland) Act 1845, and the Acts amending the same, shall be incorporated with this Act, except the provisions relating to access to the Special Act; and in construing those Acts for the purposes of this section the Special Act shall be construed to mean the Principal Act (1872), and this Act, together with the Confirming Act hereinafter mentioned, and the promoters of the undertaking shall be construed to mean the school board, and land

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shall be construed to include any right over land. (2) The school board, before putting in force any of the powers of the said Acts with respect to the purchase of land otherwise than by agreement” [ then follow provisions dealing with the mode of acquiring land compulsorily]. By section 127 of the said Lands Clauses Consolidation (Scotland) Act it is enacted that “if the promoters of the undertaking become possessed, by virtue of this or the Special Act or any Act incorporated therewith, of any lands charged with the land tax or liable to be assessed to the poors rates or prison assessments, they shall from time to time, until the works shall be completed and assessed to such land tax and poors rate and prison assessment, be liable to make good the deficiency in the several assessments for land tax and poors rate and prison assessment by reason of such lands having been taken or used for the purposes of the work, and said deficiency shall be computed according to the rentals at which said lands, with any building thereon, were valued or rated at the time of the passing of the Special Act, and on demand of such deficiency the promoters of the undertaking or their treasurer shall pay all such deficiencies to the collectors of the said assessments respectively.”

The School Board of the Burgh of Glasgow became possessed by private bargain, for the purpose of the erection of two public schools, of certain properties within the Barony Parish of the city of Glasgow. They demolished the buildings and proceeded to erect the schools on the sites. The Barony Parish Council thereupon raised an action against the Glasgow School Board concluding for payment of the sum of £25, being the amount of the deficiency created in the poor rates for the year 1894–95 owing to the demolition of these houses.

The pursuers pleaded—“The defenders having become possessed of and demolished the properties above referred to, and thereby caused a deficiency in the poor rates, which deficiency they are by the enactment above set forth bound to make good to the pursuer, he is entitled to decree against them for the sum sued for as craved, with expenses.”

The defenders denied the deficiency, and pleaded—“2. The defenders are entitled to absolvitor, with expenses, in respect—(a) the defenders acquired the sites in question in virtue of their power in the Education Act 1872 to acquire sites, and not in virtue of the powers contained in the Lands Clauses Consolidation Act, or the Special Act, or any Act incorporated therewith; ( b) Separatim, even supposing it were in virtue of the Lands Clauses Consolidation Act that they did acquire the sites in question, there is in regard to these sites no Special Act as defined in section 31 of the Education Act 1878, and therefore section 127 of the Lands Clauses Consolidation Act does not apply.”

On 11th June the Sheriff-Substitute ( Guthrie) allowed a proof. To his interlocutor the following note was appended:—

Note.—“By the Education Act 1872, section 37, the clauses of the Lands Clauses Act with respect to the purchase of lands by agreement are incorporated with the Act ‘for the purpose of the purchase by a school board of any land or building in pursuance of the provisions of this Act.’ These words occur in the section which authorises the school board to acquire sites and schools by purchase or otherwise, and appear to apply to the sixth and following clauses of the Lands Clauses Act, which give facilities for buying land from owners under disability. It is unnecessary to consider whether this incorporation included the 127th section of the Act on which this action is founded, because by the Education Act of 1878, section 31, the whole of the Lands Clauses Act, with an unimportant exception, is incorporated with the Education Acts of 1872 and 1878.

The 127th section of the Act of 1845 (section 133 in the English Act) makes the school board liable ‘to make good the deficiency’ in certain rates, including poor rates, ‘by reason of lands having been taken or used for the purposes of the work,’ and that ‘from time to time until the works shall be completed and assessed.’ This action is brought for a deficiency said to arise in this way in the assessment for the year 1894–95 on lands taken for school purposes in Barony parish, the deficiency being ascertained—as I assume, though it is not stated—by comparison with the assessment of the previous year.

The defenders object to this claim on two grounds. They say that the 127th section does not apply to them (1) because they have not bought under the provisions of the Lands Clauses Act, but under the power to acquire lands conferred by section 37 of the Act of 1872, and (2) because, in any view, the 127th section provides that the deficiency ' shall be computed according to the rental at which such lands, with any building thereon, were valued or rated at the time of the passing of the Special Act,’ and in the present case no Special Actexists in the sense of section 31 of the Education Act 1878.

1. The Lands Clauses Act, with the exception referred to, is incorporated with the Education Act, and no reason has been suggested why the 127th section should have no effect where lands are bought by private bargain, and without any use being made in regard to the properties in question (as is alleged in argument, though not admitted) even of the powers in the ‘purchase by agreement’ clauses. The natural meaning of incorporation is that the whole Act, so far as not inconsistent with the Education Act (Attorney—General v. Great Eastern Railway Company, L.R., 7 Chan. 475), is embodied in the Education Act, and the School Board is not entitled to hold itself free from certain of its provisions and to take advantage when the occasion arises of others; and as it is impossible to say in such a case as this that the possession of compulsory powers (however qualified in the Act of 1878) has not indirectly benefited the defenders in bargaining about these properties, it is not unfair to say that they

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should take the incommodum of the Act along with the commodum. This point, however, seems to be concluded by the very full explanation of what incorporation means in the preamble of the Act of 1845, which is to be construed ‘as one Act with the Education Act.’

2. It is, perhaps, a more arguable question which is raised on the proviso in the Lands Clauses Act as to computing the deficiency already quoted, taken along with the provisions of section 31 of the Education Act 1878. The latter introduces a rather peculiar and cumbrous procedure regarding the taking of land compulsorily, consisting of an application to the Education Department for an order, which becomes final only by a confirming Act of Parliament. Subsection 1 of section 31 enacts that in construing the Lands Clauses Acts and Amending Acts ‘for the purposes of this section, the Special Act shall be construed to mean the Principal Act (1872) and this Act, together with the Confirming Act hereinafter mentioned.’ The contention made is that as there is no Confirming Act in regard to the purchase of the subjects condescended on, there is no Special Act at the passing of which the rental can be completed, and therefore, as I understand the argument, the conditions necessary for the operation of section 127 of the Lands Clauses Act do not exist. The assumption is that in all cases the deficiency to be made good depends on a comparison of the rental of the present year with the year in which the Special Act was passed. I am not satisfied that this is a sound construction of section 127. It rather appears that the main provision is that until the works are completed and assessed the promoters shall make good the deficiency in rates by reason of their taking and using the lands, and that the provision as to computation is merely ancillary. In most cases there is no doubt or difficulty, because the Special Act is easily ascertained and is of no remote date, while here the definition above given refers us to an Act which has never come into existence, and but for the definition above given we should have to look to 1872 or 1878 for the passing of the Special Act. It seems to me, however, that the intention of the Legislature is that the deficiency shall be made good in all cases where lands are taken and the work not yet completed, and that the subsidiary provision does not limit the general enactment, but is applicable only where there is a special Railway or Canal Act, or the like, authorising the taking of specific lands—the species facti which no doubt was directly contemplated by the framers of the Act of 1845. In more recent times the taking of land has been authorised in a variety of ways, and by classes of promoters not then thought of, and general powers have been given to proceed under the Lands Clauses Act. I cannot doubt that all these ‘promoters’ must make good the deficiency, and that the special subsidiary proviso as to computation must receive effect in those cases only to which it is applicable. Many cases of ‘beneficial’ construction of statutes are found which go further than this, e.g., Cortis v. Kent Waterworks, 7 B. and Cr. 314, illustrates the principle, and I think that the adaptability of this very clause to circumstances apparently not contemplated is shown by Bristol Guardians v. Mayor of Bristol, 18 Q.B.D. 549, and the earlier case of Wheeler & Stratton v. Metropolitan Board of Works, there cited.

As the deficiency is not admitted, there must be a proof.”

The defenders appealed, and argued—(1) Section 31 of the Education Act of 1878 did not apply to purchase of lands by private bargain, and accordingly section 127 of the Lands Clauses Act did not apply. The land had been purchased by the appellant not in virtue of the 1878 Act. at all, but by the powers conferred upon School Boards by section 37 of the 1872 Act. Accordingly they had no occasion to refer to the Lands Clauses Act for any of the powers about agreement contained therein. There were no compulsory powers given by the 1872 Act, but it was simply to enable willing purchasers and sellers to buy and sell. That of the 37th section which incorporated the Lands Clauses Act had been repealed, and accordingly section 127 of the latter Act did not apply to this purchase. (2) The Board had obtained no Special Act here, which was required in order to ascertain the date and the nature of the undertaking. It was necessary to ascertain the date in order to fix the liability of the promoters. It was shown by a fair reading of section 31 of the 1878 Act that this was the only means provided by statute for fixing the date of liability, and the absence of the Special Act showed that the provisions of the Lands Clauses Act had not been put in force by the Board, and that accordingly they were not liable under section 127. The Sheriff had arrived at his conclusion only by ignoring the force of the words in section 127, “The assessment shall be computed … at the time of the passing of the Special Act.”

Argued for the respondents—(1) Section 31 of the 1878 Act took the place of the repealed portion of section 37 of the 1872 Act, which incorporated the Lands Clauses Act. Accordingly it must be held that land acquired under the earlier Act must be subject to the conditions of section 127 of the Lands Clauses Act. The natural meaning of incorporation must be that the whole of the Lands Clauses Act, so far as not inconsistent with the Education Act, was embodied therein, and the Board was not entitled to hold itself free from certain of the provisions of the incorporated Act and take advantage of others. (2) With regard to the Special Act, the provision as to computation was merely ancillary to the main provision that until the works were completed the promoters would have to make good the deficiency in the rates, and the ancillary provision would receive effect only when it was applicable. The Court would construe a section of this kind liberally, in order to give effect to the obvious intention of the statute, and would adapt it to meet the circumstances,

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as had been done in the cases of Bristol Guardians v. Mayor of Bristol, February 28, 1887, 18 Q.B.D. 549, and Stratton v. Metropolitan Board of Works, November 25, 1874, L.R., 10 C.P. 76.

At advising—