Scottish Court of Session Decisions

In 1850 the Magistrates and Council of the burgh of Airdrie acquired and entered into possession of a piece of ground on which they erected a powder magazine for the use of the burgh. They did this in virtue of power conferred upon them for that special purpose by sec. 59 of the Airdrie Police and Municipal Act 1849 (12 and 13 Vict. c. lxxxix). The powder magazine became vested in the Police Commissioners of Airdrie in terms of sec. 20 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55).

On 7th December 1898 the said Commissioners applied to the Court for authority to sell the powder magazine. The ground of their application was that in recent years public works and dwelling-houses had been erected in the vicinity of the magazine, which had consequently become a source of serious danger to life and property.

The Court remitted to Mr George M'Intosh junior, W.S., to report on the petition. He reported in favour of the petition being granted on the merits, but raised a question whether the present application was necessary “ The petitioners’ powers of sale are regulated by section 55, sub-section 5, of the Burgh Police (Scotland) Act 1892, which sub-section is in the following terms:—‘The commissioners shall have power from time to time to purchase or take in feu and build, or to lease such lands and premises as shall be required, and to sell or feu or dispose of such lands and premises as may have become unfit or otherwise unnecessary for the purposes of this Act.’ The petitioners consider that as the subjects mentioned in the petition were acquired under section 59 of the Airdrie Police and Municipal Act 1849, which section is still in force, they are not held for the purposes of the Burgh Police (Scotland) Act 1892, and that therefore the power of sale conferred upon the petitioners by sec. 55, sub-sec. 5, of that Act does not extend to these subjects.”