Scottish Court of Session Decisions

(Sequel of case reported ante, vol. xxxi. p. 22, and 21 R. 12.)

On 25th August 1873 the special water supply district of Duntocher and Dalmuir was formed under the Public Health Acts by decree of the Sheriff of Dumbartonshire. The district was wholly landward at that date, and was situated in the eastern portion of the county of Dumbarton.

On 18th November 1886 part of the water district was formed into the burgh of Clydebank under the provisions of the General Police Act of 1862. The only waterworks within the burgh were distributing mains for the exclusive use of the burgh, the reservoirs, tanks, &c., being all situated outwith the burgh.

The water district was originally administered by the Parochial Board of West Kilpatrick, as the local authority under the Public Health Act of 1867. On 2nd March 1887 the Police Commissioners of the burgh applied to the Board of Supervision to declare under section 5 of that Act that they, the Commissioners, were the local authority within the district, but the Board on 25th May 1887 declined to comply with the application, and accordingly the Parochial Board continued to act as local authority within the whole water district until the Local Government Act of 1889 came into operation. On 6th November 1889 the Board of Supervision, in view of the provisions of the Local Government (Scotland) Act 1889, recalled the determinations made by them under section 5 of the Public Health Act. After 15th May1890, when the Local Government Act came into operation, the Public Health Act, so far as regarded water supply, was administered throughout the whole special water district by the County Council of Dumbarton,, who annually imposed and levied special water assessments on the whole water district, received and disbursed its revenues, and through its Eastern District Committee maintained and managed the works. For a time a Sub —Committee of the District Committee, jointly with certain members of the Police Commissioners of Clydebank, managed and maintained the works in terms of section 81 of the Local Government Act, but disputes arose as to the relative numbers in which these bodies were entitled to be represented upon the Sub-Committee, and a determination issued by the Secretary for Scotland with the view of determining the question was reduced by the Court on the 19th October 1893 in an action at the instance of the Eastern District Committee of County Council of Dumbartonshire 31 S.L.R. 22, and 21 R. 12. After that date the District Committee managed and maintained the works.

In June 1891 the District Committee instituted actions in the Sheriff Small-Debt Court of Dumbarton against certain traders in the burgh of Clydebank for the price of water sold to them for trade purposes. The traders defended the actions, one of their defences being that the District Committee was not the local authority within the burgh, and had no title to sue. This plea was sustained by the Sheriff-Substitute.

Accordingly, on the 16th October 1894, the County Council of Dumbartonshire presented a petition to the Court of Session, in terms of section 61 of the Local Government Act, for the purpose of obtaining a decision of the Court upon the questions at issue.

The petitioners averred as follows—The whole property of the waterworks was vested in, and the whole debts and liabilities of the water district were laid on them. They alone, coming in place of the Parochial Board, were entitled to levy the assessments for water supply, one-half on owners and the other half on occupiers of heritage over the whole water district. They had charge of the financial affairs of the whole water district, and no dual or divided administration was contemplated or provided for by the Act.

The petitioners accordingly craved the Court to find “(1) that the petitioners, the County Council of the county of Dumbarton, are alone entitled to impose and levy assessments for the purposes of said special water supply district of Duntocher and Dalmuir under the said Public Health (Scotland) Act 1867, and the said Local Government (Scotland) Act 1889, or either of them, from the whole ratepayers in the said special water supply district, including the ratepayers within the burgh of Clydebank; (2) that the said Eastern District Committee is the local authority under the Public Health (Scotland) Act 1867, so far as the water supply is concerned, in the whole of said special water supply district, including such part thereof as is within the said burgh of Clydebank, subject to the regulation and control which the said Local Government (Scotland) Act 1889 confers on the petitioners; (3) that the said Eastern District Committee is alone entitled to decide the amount of water to be supplied for domestic purposes within the said special water supply district, and to arrange for the disposal of any surplus water and the rate or price to be paid therefor; … (5) that all disbursements in connection with said special water supply district fall to be paid by the petitioners out of the county fund, on the requisition of the said Eastern District Committee.”

Answers were lodged by the Eastern District Committee concurring in the

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prayer of the petition so far as above quoted.

The Police Commissioners of Clydebank also lodged answers. They averred as follows—The Police Commissioners were the local authority under the Public Health Acts, with all the powers and liabilities attaching thereto, within Clydebank. No change was made under the Local Government (Scotland) Act 1889 in their position as the local authority within the burgh. They were admittedly so for all public health purposes other than the supply of water, and there was no warrant in the statutes for severing the powers and duties of local authorities under the Public Health Acts. They intended to make an application urider the Local Government (Scotland) Act 1894, section 44, sub-sec. 9, to the Secretary for Scotland to determine the numbers of the Sub-Committee and of the representatives of the Commissioners to be charged with the management and maintenance of the water supply district, and the dispute between the parties ought to be settled under this provision. They therefore craved the Court to refuse the petition “in respect (1) that the respondents are the local authority under the Public Health Acts within the burgh for all purposes; (2) that the powers asked for in the petition were not conferred on the petitioners nor the Eastern District Committee by the said Local Government (Scotland) Act 1889; and (3) that the dispute between the parties ought to be settled as provided by the Local Government (Scotland) Act 1894, section 44, sub-sec. 9.”

Section 11 of the Local Government Act of 1889 provides—“Subject to the provisions of this Act there shall be transferred to and vested in the council of each county, on or after the appointed day, or at such times as are in this Act in that behalf respectively specified—(4) The whole powers and duties of the local authorities uuder the Public Health Acts of parishes so far as within the county (excluding burghs and police burghs).”

Section 17 provides—“With respect to the transference to the county council of the powers and duties of certain local authorities under the Public Health Acts, the following provisions shall have effect: —(1) For the purposes of the administration of the laws relating to public health, the county shall, except as hereinafter provided, be divided into districts in the manner provided in this Act, and there shall be a district committee for each such district constituted as provided in this Act;

(2) A district committee shall, subject to the provisions of this Act, be the local authority under the Public Health Acts, and as such shall have and may exercise within its district all the powers and duties, and be subject to all the liabilities by this Act transferred to or conferred on the county council with respect to the administration of the laws relating to public health, except those relating tomedi—cal officers or sanitary inspectors for the county, and subject to the provisions following (a) A district committee shall have no power of raising money by rate or loan.” …

Section 81 provides—“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 sub committee 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.” “(3) Where a special drainage district or special water supply district is wholly within a police burgh formed after the passing of this Act, the police commissioners of such police burgh shall become the local authority under the Public Health Acts for such special district, and the assessments in respect of the drainage and water supply shall be levied in the same manner as they were before such district was formed into a police burgh.”

Argued for petitioners—If a water district were formed and a burgh carved out of it subsequently, as in the present case, the burgh did not get powers of its own, but the district remained the same, the police commissioners having nothing to do with the finance of the water district. The “management and maintenance” conferred by the Acts upon the sub-committee referred merely to the daily operations of the district, not to any capital expenditure. With regard to the latter, the sub-committee acted merely as advisers of the county council. The police commissioners had no powers of levying assessments upon “owners,” but only upon “occupiers.” As the petitioners levied,and would continueto levy, assessments upon both occupiers and owners, there would be an anomalous state of things created if the respondents' views were adopted. The terms of sections 21 and 43 of the Burgh Police Act 1892 did not apply to the present case, only being applicable to the burgh itself, not to assessment in the water district. So this question

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could not be settled by the Secretary for Scotland.

Argued for respondents, the Police Commissioners — They were admittedly the local authority within the burgh for all other public health purposes except water, and the powers under the Public Health Acts could not be split up in the way suggested by the petitioners, who, if they were the local authority for water purposes, ought to be so for all others. No special powers were by sec. 81 of the Local Government Act of 1889 conferred upon county councils. That clause provided for a body to carry out the necessary work by forming a “joint committee.” There was at the time of the formation of the burgh no stereotyped local authority, but when the change occurred the powers of the local authority were transferred to the police commissioners. It was true that they could only levy assessments upon occupiers, but it was conceivable that as the occupiers had erected themselves into a burgh advisedly subject to such changes as these, the charge upon the original rates might be converted into one upon the substituted rates. In any case, the dispute between the parties might be settled by an application to the Secretary for Scotland under the Local Government (Scotland) Act 1894, section 44, sub-section 9, by which he had now power to fix the proportion of the members on the joint—committee. The petition therefore was unnecessary.

In the course of the discussion the following sections of statutes were referred to:—Local Government Act 1889, secs. 11, 17, 25–27, 73, 75–77, 81, 89, 90. Local Government Act 1891, sec. 41; Public Health Act 1867, secs. 5, 89, 91, 97; the Burgh Police Act 1892, secs. 4, 5, 7, 21, 42, 43.

At advising—