Scottish Court of Session Decisions

In 1878 the police burgh of Hamilton obtained a private Act of Parliament by which its area was nearly doubled. It was arranged between the parties concerned that, with the exception of the burgh buildings and the gas-works, the whole of the common good of the old burgh (amounting in annual value to about £1000) should be reserved for the benefit of the old burgh.

This arrangement was given effect to in the Act of Parliament (the Hamilton Burgh Act 1878), sec. 25, which provides that, with the above-mentioned exceptions, the common good should be held by the corporation “for the exclusive behoof and benefit, as heretofore, of the portion of the burgh comprised within the boundaries of the existing burgh, and shall, subject to the provisions of this Act, be applied solely within such portion of the burgh, and to the same or similar purposes as heretofore, or to the entire or partial relief of the ratepayers of such portion of the burgh, from all or any of the rates and assessments leviable from them in respect of property within such portion of the burgh.

Sec. 86 of the same Act provides that mines and minerals should be assessed to sewer rates at one-eighth, and to other rates at one-sixth, of their annual value.

In 1897 the Corporation of Hamilton presented a petition to the Secretary for Scotland for a provisional order in terms of sec. 45 of the Burgh Police (Scotland) Act 1892, providing, inter alia, (1) that sec. 25 of the local Act should be repealed and sec. 358 of the Burgh Police Act should apply to Hamilton; and (2) that sec. 86 of the local Act should be repealed and sec. 347 of the Burgh Police Act should apply to Hamilton. Sec. 358 of the Burgh Police Act (1892 55 and 56 Vict. cap. 55), enacts that “when the provisions of this Act shall be in operation in any burgh possessed of any free income arising from the common good of such burgh,” the town council may make a reasonable contribution from it “towards the purposes of this Act.” Sec. 347 enacts that mines and minerals shall be assessed at their full annual value for all purposes.

Certain persons lodged objections to this petition with the Secretary for Scotland, who on 16th November 1897 directed the Sheriff of Lanarkshire to hold a local inquiry in the district in respect of the matter mentioned in the application, in terms of sec. 46 of the Burgh Police Act 1892. The objections to the petition were at the same time transmitted to the Sheriff, who was desired not to “exclude evidence on the question of competency which is raised in the memorial for the objectors.” The Sheriff appointed the inquiry to be held on 23rd December.

In these circumstances the objectors, Archibald Russell and others, lessees and proprietors of minerals in the burgh of Hamilton, presented a note of suspension and interdict to have the Provost, Magistrates, and Council of Hamilton, the Secretary for Scotland, and the Sheriff of Lanarkshire interdicted from following forth the petition of the Corporation for a provisional order, and from holding the inquiry.

The complainers, in addition to setting forth the facts above-mentioned, averred—“(Stat. 5) A movement has for some time been going on amongst a number of persons residing or owning property in the extended portions of the burgh, in favour of extending the benefits of the common good of the old burgh to said extended portion, and the present application to the Secretary for Scotland is being promoted in furtherance of this movement. In order to carry out the scheme, and to disarm the opposition of those who reside or own property in the old burgh, the Corporation have found it necessary to provide from some new source a sufficient revenue to avoid the necessity which would otherwise arise of imposing higher assessments on the old burgh than were necessary, while it enjoyed the monopoly of the common good, and they propose to achieve their end by getting powers to alter the mode of valuing the complainers' minerals, and so obtaining from them, and others similarly situated with them, the necessary increment of revenue. (Stat. 9) The said petition and the proceedings following thereon are illegal, incompetent, and unauthorised by statute or otherwise. … Neither section 25 nor section 86 can, in terms of the statutes, be altered or repealed by provisional order as proposed, and the whole proceedings are therefore irregular, invalid, and unauthorised by statute. It would be most injurious to the complainers' interests, and would cause them much unnecessary expense, both as objectors and as ratepayers, if the inquiry and other proceedings following on said application were allowed to proceed without their competency being first determined by a competent court.”

The respondents, the Corporation of Hamilton, explained that “owing to dissatisfaction with the working of the provision of section 86 of the Hamilton Burgh Act 1878, but more especially to the changes introduced by the Burgh Police (Scotland) Act 1892, and the Public Health (Scotland) Act 1897, it was deemed expedient to apply to the Secretary for Scotland for a provisional order to abolish the exceptional restriction imposed on the rating of minerals in the burgh of Hamilton, and that the opportunity was taken of extending the benefits of the common good to the whole burgh, for which there had been an expressed desire on the part of the extended municipality.” They further denied that the petition for a provisional order and the subsequent proceedings were incompetent.

The complainers pleaded—“(l) The said

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application to the Secretary for Scotland being illegal, incompetent, and unauthorised, the complainers are entitled to interdict.”

The Burgh Police Scotland Act 1892 (55 and 56 Vict. cap. 55), sec. 45, enacts that “Whenever it shall appear to the Commissioners of any burgh to which this Act applies that they require additional powers for the better carrying out of the purposes of this Act, and specially powers relating to the supply of gas or water, or to the roads and streets, or to drainage or sewers or the utilisation of sewage, in addition to the powers conferred by the Public Health Acts, or for the repeal or amendment of any local Acts of Parliament relating to such subjects, or their adaptation and adjustment to the provisions of this Act. with such amendments as may be found necessary, or for the repeal of any exemption from rating derived from this or any general or local Act, or to other matters cognate to the purposes of this Act, they may apply to the Secretary for Scotland for a provisional order.”

On 11th December 1897 the Lord Ordinary ( Pearson) passed the note and granted interim interdict.

Opinion. — [ After stating the facts and citing section 45, his Lordship proceeded]—“Now, the Burgh Police Act of 1892 applies to the burgh of Hamilton, but it does so subject to the provisions of the Hamilton Burgh Act 1878 except as to a few sections of the last-mentioned Act which are superseded, but which have no bearing on the present question. Therefore the 25th section, which I have recited, is still in force in the burgh of Hamilton.

“The Burgh Commissioners, in their memorial in support of the provisional order, frankly aver that ‘the retention of the common good by the old burgh has been the subject of much controversy and heartburning in the annexed district.” And they have discovered that by section 358 of the Burgh Police Act 1892 (following section 95 of the Police Act of 1862) it is enacted that ‘when the provisions of this Act shall be in operation in any burgh possessed of any free income arising from the common good of such burgh,’ the town council may make a reasonable contribution from it towards the purposes of this Act.’ Accordingly, on the assumption that the enlarged burgh of Hamilton fulfils the conditions of this section, and is ‘possessed of free income arising from the common good of that burgh,’ they pray in the petition for the provisional order that section 25 of the local Act shall be repealed, and section 358 of the general Act be substituted for it.

Now, the common good of the old burgh is, of course, vested in the town council of the enlarged burgh, which is the only town council within the area. But it is vested in them (with insignificant exceptions) in trust for the old burgh to which it exclusively belongs. I should have thought it doubtful whether even if section 25 of the local Act were out of the way, the burgh of Hamilton (meaning thereby the enlarged burgh) would fulfil the condition of section 358 of the general Act. It might be doubted whether the enlarged burgh of Hamilton (unless it possesses some common good of its own as an enlarged burgh, which is not suggested) is a burgh ‘possessed of any free income arising from the common good of such burgh.’ But the open and avowed purpose of the applicants for the provisional order is to obtain power to spread the benefit of the common good belonging to the old burgh over the constituency of the extended burgh, and this being so, they can hardly object to the assumption made at this stage that the provisional order which they desire would effectuate the object for which they ask it. Now, of course, Parliament is competent to give them the power, and there are recognised modes of approaching Parliament for that or any other object by private bill. But the question I have to consider is quite a different one. It is, whether such a purpose can be effected by the short cut of a provisional order under section 45.

I am clearly of opinion that it cannot. The purpose of the section is to facilitate the acquisition of additional powers ‘for the better carrying out of the purposes of this Act,’ and specially the powers therein enumerated. It is no part of the purposes of the Act to take the property of one set of persons and confer it upon another set of persons, even if you can show that the former are compensated for the loss. The enumerated powers are all more or less of an administrative character, excepting perhaps ‘the repeal of any exemption from rating derived from this or any general or local Act,’ which in my opinion does not cover the matter now in hand. It is true that there is not very much difference in the case of an opposed scheme between procedure by private bill and by provisional order. The latter saves certain fees, but, on the other hand, it interposes an additional stage for procedure, for notwithstanding the local inquiry the provisional order bill, if opposed in Parliament, is treated as if it were a private bill. But every extension of the provisional order system is to a certain extent a delegation of the functions of Parliament, and therefore I take it that even if the matter were more doubtful than I think it is, a clause like section 45, although in form it is an enabling clause, is really to be construed somewhat strictly, and is not to be extended to matters which are not clearly within its scope.

I express these views provisionally, and only as setting forth the prima facie aspect of the case as argued before me. But in a case of this kind, though I have nothing to do at present but to pass the note and grant interim interdict, the judgment necessarily involves an indication of opinion on the merits, to which indeed I was invited by both parties.

The draft provisional order contains one other proposal, namely, the repeal of section 86 of the local Act and the substitution for it of section 347 of the general Act. Shortly stated (so far as the complainers

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are interested in the matter), the difference is, that by section 86 mines and minerals are assessed to sewer rates at one-eighth of their annual value, and to other rates at one-sixth, while under section 347 they are assessed at their full annual value for all purposes. The complainers argued that this also was an alteration which could not be affected by provisional order under section 45. I am disposed to hold that this alteration is within the section. On this assumption the respondents suggested that the inquiry might be allowed to proceed on this head even though interdicted on the other. But it is common ground that both proposals are parts of one scheme, and it cannot be assumed that if the scheme had been halved the respondents would ever have propounded it. Besides, the terms of the remit for inquiry do not favour the suggestion that it could be executed pro parte. And I think, on considerations of expediency, that it is better it should be postponed until the whole questions of law are tried.

The fact that the two parts of the scheme are linked together is said to suggest that when it is regarded as a whole the equitable objections to the proposal regarding the common good may be modified if not removed. This, no doubt, is so as regards the minerals in the extended area of the burgh, for while their assessment is to be heavier, there is a quid pro quo in their participation in the benefits of the common good. But it is otherwise as regards the minerals within the old burgh, which are stated to be of the gross annual value of over £10,000, and which are represented by the complainers. These are to suffer a double disadvantage; their assessments are to be largely increased and their share of the common good largely diminished. But in truth such considerations are not relevant to the question, which is whether the proposal as to the common good is within the scope of section 45. If it is not, I do not think it can be brought within the clause by being linked to something else which is not open to the same objection.”

The respondents reclaimed, and argued—(1) The application for the provisional order was perfectly competent. The scope of section 45 was very wide, and embraced not only exemptions from assessment, such as had been granted to mine-owners by the local Act of 1878, but also the amendment generally of all local Acts. The “purposes of the Act” undoubtedly included questions of rating. But this was not the stage for deciding the question of competency; let the statutory inquiry ordered by the Secretary for Scotland proceed, and let the question of competency be decided afterwards— Dumbarton Waterworks Commissioners v. Lord Blantyre, November 12, 1884, 12 R. 115. (2) Assuming the proposal with regard to the common good to be incompetent, there was no reason why the other proposal as to the equalisation of rates should not be inquired into. The Corporation were quite willing to proceed upon that footing.

Argued for the complainers—(1) Both proposals were incompetent. As regards the common good, there was not a word in section 45 to sanction this shorthand mode of altering rights of property. An Act of Parliament was necessary as regards the equalisation of rates. This was not a question of exemption from assessment, but of incidence of taxation, and such questions Parliament jealously reserved for its own determination. It would require very plain words in an enactment to overcome the presumption that no such power as that contended for was conferred. The whole scope of the Burgh Police Act was administrative. (2) But even if only one of the proposals was incompetent, that was enough to vitiate the whole proceedings, and to preclude the inquiry being held. The Secretary for Scotland had ordered an inquiry to be held on both proposals; the Court had no power to withdraw one, and thus order an inquiry on a different topic altogether. The two proposals, according to the complainers' averments, which the respondents did not seriously deny, were inextricably connected with one another.