Scottish Court of Session Decisions

The Magistrates of Glasgow, as the local authority under the Contagious Disease (Animals) Act 1878, established in 1879 a wharf at Pointhouse, Glasgow, for the landing of cattle brought to this country from Canada and the United States. The wharf was a public market, and was the only landing-place in Scotland authorised by the Board of Agriculture, under the Diseases of Animals Acts 1894 and 1896, for the reception of Canadian and American cattle, which must all be slaughtered before being removed from the Wharf. Sale rings were provided at the wharf where imported cattle were sold by auction, and the business of the market was regulated by certain bye-laws enacted by the Magistrates.

On 7th June 1898 the Executive Committee of the Magistrates, acting under the Diseases of Animals Acts 1894 and 1896, and the Markets and Fairs Clauses Act 1847, enacted the following bye-law with reference to Pointhouse Wharf:—“1. The sale rings shall be used only for public sales of cattle by auction on conditions of sale which shall be equally applicable to all bidders and buyers. The sale rings shall not be used for private sales, or for sales to any limited number of persons, or for sales in which any class of the public are excluded from bidding or buying.” Two other bye-laws of a subsidiary and executorial character were also enacted at the same time.

These bye-laws were approved of by the Board of Agriculture on 10th August 1898.

On 7th September 1898, Roderick Scott, cattle and dead-meat salesman, Glasgow, and others, raised an action against the Magistrates of Glasgow, to have it declared that these bye-laws were null and void, and for reduction of the same.

The pursuers challenged the bye-laws on two grounds. In the first place they pleaded that they were ultra vires of the Local Authority and the Board of Agriculture. In the second place they pleaded that they were incompetent, not having been made and approved in terms of the statute.

1. In support of their first contention the pursuers averred—“(Cond. 4) The pursuers, or some of them, are in the habit of importing cattle from the United States and Canada, and of selling the same at Point-house Wharf. These sales are attended, and the cattle bought, by the pursuers, or some of them, and by members of the Fleshers' Trade generally in Glasgow and elsewhere for retail disposal. It is in the interest of the pursuers to limit these sales to the trade, and not only are they in fact so limited, but many of the pursuers have for many years been in the practice of selling under conditions which expressly exclude all bidders and buyers not belonging to the trade. The object of the Local Authority in passing these additional bye-laws is to compel all auctioneers who sell cattle at Pointhouse Wharf to accept bids from all and sundry. This interference with the liberty of the pursuers, as importers, auctioneers, and buyers, to sell to and buy from whom they please, has been made by the Local Authority in the interest of the Co-operative Societies, between whom and the Fleshers' Trade considerable friction has recently arisen. These societies have not only no connection with the trade, but are professedly hostile to it. They announce as their main object the suppression of individual traders such as the pursuers, and they use every means in their power, not only in the way of ordinary competition, but by combination and exclusive dealing, and by public agitation, to drive individual traders, and, inter alios, the pursuers, out of the market, and to ruin their business. While their wholesale departments adopt the policy of dealing exclusively with co-operators, these societies have, as regards foreign meat, instead of themselves importing cattle at Pointhouse and auctioning or disposing of them there, as they are free to do, adopted to an increasing extent the plan of buying at the pursuers' sales at Pointhouse (although they are not members of the trade), in order to supply co-operative consumers buying retail at the stores at wholesale prices. For their own protection, and for the protection of their trade, the pursuers, or some of them, were compelled to enforce as a condition of their sales the exclusion of co-operative bidders and buyers. The additional bye-laws are intended to prevent and would prevent any auctioneer selling at the Pointhouse Wharf from putting in his conditions of sale any stipulation that he will not accept of bids from parties representing directly or indirectly any Cooperative Society. (Cond. 5) The said additional bye-laws are illegal, incompetent, and ultra vires. They are, moreover, contrary to statute, in respect that they deal with a matter with which the Local Authority have no concern, their sole interest being the prevention of the spreading of disease, and the bye-laws dealing, not with the ‘use’ of the sale rings, but with the conditions between the sellers and buyers who use the sale rings.” …

2. In support of their second contention the pursuers founded on sections 44 and 45 of the Markets and Fairs Clauses Act 1847, and section 32, sub-sec. 3, of the Diseases of Animals Act 1894, and averred—“The procedure prescribed by these enactments was not followed in making and approving the said additional bye-laws. In particular, no hearing was fixed or held, and the pursuers, although they urgently asked the Board of Agriculture to appoint a hearing, were given no opportunity of being heard against the said bye-laws.” With reference to the defenders' averments that there had been a hearing before the Board of Agriculture on 30th November 1897, the pursuers explain that that hearing was not

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a hearing within the meaning of the Acts of Parliament hearing on the matter, in respect that neither the President of the Board nor any of the Officers of State mentioned in the Board of Agriculture Act 1889) were present, and that it is provided by said Act that the Board shall not be entitled to act unless the President or one of said Officers of State is present.

Upon the whole matter the pursuers finally averred—“The said additional bye-laws are injurious to the pursuers and to the trade to which they belong. Their business, whether as wholesale dealers or as retailers, would suffer serious damage if they are not to be permitted to confine the wholesale transactions which take place at Pointhouse to members of the trade. This restriction is universal in all departments of trade not carried on upon the co-operative principle, and the pursuers' businesses could hardly be carried on at all if it were to be declared illegal. Moreover, the said bye-laws constitute a serious and illegal attempt to encroach on the pursuers' freedom and rights as importers and auctioneers, and deprive them of the right to conduct their sales at Pointhouse with such persons and under such conditions as have hitherto been the custom, and as are found expedient, in order to further their business, and protect themselves against the hostile combinations of co-operators.”

The defenders' answers on the first branch were to the following effect:—“Admitted that cattle are bought at the sales by butchers for retail disposal. Admitted that cattle have for several years been bought at Pointhouse Wharf by or on behalf of co-operative societies, and that the pursuers and others recently sought to prevent, not only the co-operative societies, but persons in any way connected with them, and even persons having members of co-operative societies in their employment, from buying at the auctions of foreign cattle at Pointhouse Wharf. In March 1897 the pursuers, along with certain other persons, instituted what was popularly known as the ‘butchers’ boycott,’ a combination formed for the purpose of excluding persons in any way connected with the co-operative societies from bidding at the public auction sales at Pointhouse Wharf. Until the institution of this boycott in March 1897 no bid from a solvent purchaser was ever refused by the cattle salesmen at Pointhouse Wharf, and there was no restriction in force in the sale rings excluding any class of the public from buying. Explained further, that not only a very large portion of the community of Glasgow, but vast numbers of people throughout the country, are connected with co-operative societies, and are dependent upon the sales at Pointhouse Wharf for their supplies of American and Canadian meat. The proposed bye-laws are intended to prevent the salesmen at this public wharf refusing the bids of these people simply because of their connection with co-operative societies. Owing to the action of the pursuers and those associated with them, the number of cattle consigned to the Foreign Animals Wharf at Pointhouse has been greatly reduced, and cattle which in ordinary course would have come to Glasgow market are being sent to ports in England.”

On the second head the defenders explained that in September 1897 they had promulgated three new bye-laws, one of which was identical with the principal bye-law now complained of. The pursuers lodged objections thereto, and parties were heard before the Board of Agriculture on 30th November 1897. [The hearing took place before Mr Elliott, secretary to the Board of Agriculture.] For certain reasons these proposed bye-laws were withdrawn, and the defenders subsequently advertised the bye-laws now in question, to which the respondents lodged objections with the Board of Agriculture. That Department took the view that they were not bound to give parties a hearing on the matter, and that in any event, as parties had already been heard, a second hearing was unnecessary.

The defenders pleaded, inter alia—“(3) The bye-laws in question not being ultra vires of the Local Authority, but being legal and valid, and having been regularly and competently passed and approved of, these defenders are entitled to absolvitor.”

The Markets and Fairs Clauses Act 1847 (10 and 11 Vict. cap. 4), sec. 42, enacts—“The undertakers may from time to time make such bye-laws as they think fit for all or any of the following purposes (that is to say); For regulating the use of the marketplace and fair, and the buildings, stalls, pens, and standings therein, and for preventing nuisance or obstruction therein, or in the immediate approaches thereto.” …

Section 44—“No bye-laws under the authority of this or the special Act … shall come into operation until the same shall be allowed … by the Sheriff … and … approved under the hand of me, one of Her Majesty's principal Secretaries of State; and it shall be incumbent on … the Sheriff … to examine into the bye-laws … and to allow of or disallow the same.” …

Section 45—“Provided always that no such bye-law shall be allowed in manner herein mentioned unless notice of the intention to apply for an allowance of the same shall have been given in one or more newspapers of the county in which the market or fair shall be situated, … and any party aggrieved by such bye-law, on giving notice of the nature of his objection to the undertakers ten days before the hearing of the application for the allowance thereof, may, by himself or his counsel, attorney, or agent, be heard thereon.”

The Diseases of Animals Act 1894 (57 and 58 Vict. cap. 57), sec. 32, enacts—“(1) A local authority may provide … wharves … for the reception … or disposal of foreign or other animals … (2) There shall be incorporated with this Act the Markets and Fairs Clauses Acts 1847 … (3) A wharf or other place provided by a local authority under this section shall be a market within that Act; and this Act shall

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be the special Act … and bye-laws shall be approved by the Board of Agriculture, which approval shall be sufficient without any other approval or allowance, notice of application for approval being given, and proposed bye-laws being published before application, as required by the Markets and Fairs Clauses Act 1847.”

The Board of Agriculture Act 1889 (52 and 53 Vict. cap. 30), sec. 1, enacts—“(1) There shall be established a Board of Agriculture, consisting of the Lord President of the Council, Her Majesty's Principal Secretaries of State, the First Commissioner of Her Majesty's Treasury, the Chancellor of Her Majesty's Exchequer, the Chancellor of the Duchy of Lancaster, and the Secretary for Scotland, and such other persons (if any) as Her Majesty the Queen may from time to time think fit to appoint during Her Majesty's pleasure: Provided that the Board shall not be entitled to act unless the President or one of the Officers of State above mentioned is present.” Subsection 2 empowers Her Majesty to appoint any member of the Privy Council to be President of the Board.

On 6th December 1898 the Lord Ordinary ( Kincairney) found (1) that the bye-laws had been made and approved of in terms of the statute by which they were authorised; (2) that the said bye-laws were not ultra vires of the Local Authority and the Board of Agriculture: Therefore repelled the pursuers pleas-in-law and assoilzied the defenders.

“ Opinion.—. There is no doubt that these bye-laws are the outcome of a very pronounced antagonism which arose between a large number of butchers who kept butchers' shops, and co-operative societies who were in use to compete with the butchers at the Pointhouse sales; the view of the butchers (as I understand) being that the sales were to be regarded as wholesale sales, and the co-operative societies as practically and truly consumers, and that it was not fair—or at least that it was to the serious detriment of the butchers—that the co-operative societies being truly consumers should compete with the butchers who purchased there for re-sale by retail to other consumers. In order to give effect to this view a number of the Glasgow butchers in 1897 combined under the name of the Glasgow Fleshers' Trade Defence Association, and they intimated to the auctioneers who were in use to carry on the auction sales at Pointhouse that they would not bid at their sales unless they refused the bids of co-operative societies or of persons connected with co-operative societies. The auctioneers, fearing the loss of the custom of the butchers, yielded to this pressure, and inserted in their articles of sale provisions excluding co-operative stores, and the sales thereafter proceeded under these conditions.

The Scottish Co-operative Wholesale Society raised an action in the Court of Session in order to try the legality of these proceedings. This action was called before me, and was defended by the Fleshers' Association, and by the auctioneers or salesmen. It is not necessary to detail the pleadings. It is sufficient to say that the result of the action was that on 14th January 1898 I pronounced a judgment by which I found in substance that the insertion by the auctioneers in their articles of roup of conditions excluding co-operative societies as bidders was not open to challenge as illegal or ineffectual, and (following certain recent decisions in England) that it was not relevantly averred that the Flesher's Association had acted illegally in inducing the auctioneer to insert these conditions. My judgment is reported at page 645 of vol. 35 of the Scottish Law Reporter. It became final, and I am no doubt entitled—perhaps bound—to hold it in accordance with the law.

But apparently the result did not commend itself to the Magistrates of Glasgow as Local Authority, or to the Board of Agriculture, as expedient, and hence the bye-law now in question, which certainly purports to provide a remedy for the state of matters brought about by the interference of the butchers, the concession of the auctioneers, and my interlocutor.

There seems no doubt that these bye-laws resulted from the action taken by the butchers against the co-operative societies. But the pursuers in their argument put their case on a wider basis. They maintained that the question was not a question between butchers and cooperative societies only but a question between wholesale dealers, retailers, and consumers; that in the ordinary course of trade consumers buy from retailers, and retailers from wholesale dealers, who do not in the ordinary course of trade sell directly to consumers. They say that the effect of the bye-law is to prevent wholesale dealers in live Canadian and American cattle from refusing to deal directly with consumers, and from confining their transactions, if they so please, to sales or retailers, or, so to speak, middlemen, and they argue, I understand, that a bye-law having that effect is contrary to established usage and, as experience has proved, inexpedient and against the public interest.

This is an action of reduction of the bye-laws, and it is defended by the Magistrates of Glasgow, the Local Authority. People may differ on the question whether it is most for the public benefit to confine such sales to the butchers, with a view to subsequent sale by retail, with the advantages which may arise from competition and individual enterprise, or to open the sales to consumers without restriction. But it is not for me, in disposing of this action, to consider the merits of that disputed point. It is a question with which I have nothing whatever to do. The only questions with which I am concerned, regard the validity or invalidity of the bye-laws, in respect of the manner in which they were enacted, and in respect of the power or want of power of the Local Authority and Board of Agriculture to enact them.…

The next question in logical order is whether the bye-laws have been duly

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enacted—that is to say, whether the statutory directions have been followed. There is no objection on this point to the actings of the Local Authority. The blot is said to be in the procedure of the Board of Agriculture; and what is said is, that whereas the Board is under statutory obligation to hear objections to a bye-law proposed by the Local Authority before approving of it, a hearing asked by the pursuers in support of their objections was refused.

This point depends primarily on sub section 3 of the 32nd section of the Diseases of Animals Act 1891; and secondly, but subsidiarily, on the 44th and 45th sections of the Markets and Fairs Clauses Act 1817, which Act is (with an immaterial exception) incorporated with the Act of 1894 (section 32, sub-section 2).

Sub-section 3 of section 32 of the Act of 1891 enacts that a wharf provided by the Local Authority (which is the case of the Pointhouse Wharf), shall be a market within the Markets and Fairs Clauses Act, and that bye-laws shall be approved of by the Board of Agriculture, ‘which approval shall be sufficient without any other approval or allowance,’ notice of application for approval being given, and proposed bye-laws being published before application, as required by the Markets and Fairs Clauses Act 1847.

There is here no provision for any hearing by the Board of Agriculture. The reference to the Markets and Fairs Clauses Act is to provisions in that Act as to notice of application for approval and publication of the proposed bye-law, but not (expressly at least) to any provisions in that Act about hearing objections.

The sections of the Markets and Fairs Clauses Act referred to are 44th and 45th. By the 44th section it is provided that no bye-laws made under its authority ( i.e; by the undertakers) ‘shall come into operation until the same shall be allowed in the manner prescribed by the special Act’(i.e; in this case the Act 1891), or if there be no special Act, until it shall be allowed by the Sheriff and approved under the hand of a Secretary of State, and that it shall be incumbent on the Sheriff ‘on the request of the undertakers, to examine into the bye-laws “tendered,” and to allow or disallow them as may seem meet.’

Section 45 provides that no bye-law shall be so allowed ‘unless notice of the intention to apply for an allowance’ shall have been given in the manner specified; ‘and any party aggrieved by any such bye-law on giving notice of the nature of his objection to the undertakers ten days before the hearing of the application for the allowance thereof may, by himself, or his counsel, attorney, or agent, be heard thereon.

Under the provisions of the Act of 1894 no procedure takes place before the Sheriff. But the pursuers contend that the Board of Agriculture comes under the Act of 1894 in place of the Sheriff, and that it is by implication provided that the hearing allowed to objectors before the Sheriff by the Markets and Fairs Clauses Acts should now take place before the Board of Agriculture. It was argued that otherwise the provisions about notice and publication would not have been incorporated. The defenders contend that the Board of Agriculture takes the place under the Act of 1894 of the Secretary of State under the Act of 1847, and that the proceedings before the Sheriff, including necessarily the hearing before him, have all been abolished, and that nothing is required under the Act of 1891 except the approval of the Board of Agriculture, after the notice and publica-required by the Markets and Fairs Clauses Act, or such modification of these as was possible, which notice and publication might imply a right to object, but did not imply a right to insist on an oral hearing in support of objections. I have no hesitation in assenting to the latter contention, and I consider it quite illegitimate to hold that an obligation to hear objectors is imposed on the Board by a mere implication from the provisions of the Markets and Fairs Clauses Act for a hearing before the Sheriff. It is most reasonable to suppose that when a matter of this sort is committed to a public department such as the Board of Agriculture, it is left to the discretion of the Board to hear parties or not as might be deemed necessary, and in such form as might be thought expedient, more especially having in view the extensive discretionary powers expressly conferred on the Board by the Act of 1894, and also the fact that the initiative is in the hands of another public body—the Local Authority. I am'of opinion, therefore, that the bye-laws cannot be reduced on the ground that the pursuers were not heard by the Board in support of their objections.

It was further maintained by the defenders that (substantially) the pursuers had been heard by the Board, because they had been heard in support of their objections to other proposed bye-laws, the principal of which was identical with the first bye-law here in question, which bye-law had not come into force because there was one of them of which the Board had not approved. That hearing was before the Secretary of the Board. It is not necessary for me to decide that point, but I am not at present able to say that if the pursuers had a statutory right to be heard by the Board, that right could be held to be satisfied by the previous hearing, nor am I prepared to hold that a hearing by the Secretary of the Board was equivalent to a hearing by the Board, any more than a right to be heard before the Sheriff, conferred by the Markets Act, would be satisfied by a hearing before the sheriff-clerk.

The third and much the most important question is, whether the first bye-law is ultra vires? If it is, of course the subsidiary bye-laws will fall along with it; if not, then the other bye-laws are not challenged.

The bye-law is said to be ultra vires for two reasons—First, because it does not fall within the scope of the statute or statutes under the authority of which it is said to have been enacted; and secondly, because it is said to be repugnant to the law of Scotland. On the other hand, the defender's

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maintained that the bye-law is within the scope of the statute which the defenders administer, and that it is in no respect repugnant to the law. The defenders supported the bye-law on a third ground, viz., that it is within the powers of the Local Authority, as proprietors of the wharf, without the sanction of the Board of Agriculture. I mention this third ground of defence because it was pleaded, but I shall not require to dispose of it.

The first question is, Whether these bye-laws are ultra vires of the Local Authority? If they are, they could not be validated by the approval of the Board of Agriculture. If they are intra vires of the Local Authority, the approval of them was certainly and admittedly infra vires of the Board.

The power of the Local Authority and of the Board of Agriculture, in virtue of which the bye-laws were enacted, is said to be conferred by the Diseases of Animals Act 1894, reading as part of that Act certain sections of the Markets Act which are incorporated; and it may be convenient here to notice the general character of the Act of 1894. It is entitled—An Act to consolidate the Contagious Diseases (Animals) Acts 1878 to 1893, which operation of consolidation is effected by the repeal of all these Acts with immaterial exceptions. Its short title (section 79) is the Diseases of Animals Act 1894. I do not find in the Act any clause which purports to express its general purpose, or the general scope of the powers of a local authority under it except the general provision that the Local Authority shall execute and enforce the Act. But, undoubtedly the principal object of the Act is the prevention of disease among animals used for food, whether foreign or not, and whether alive or dead. It is put under the administration and control of the Local Authority and the Board of Agriculture, and it seems to be framed on the plan of expressing in great detail the powers committed to the Board. Thus, in section 22 alone no less than thirty-seven matters are mentioned with regard to which the Board is empowered to make orders. The power so conferred on the Board appears to be unqualified, and to be entrusted to the Board on its own initiative and discretion. I may notice that among these clauses there is one (the 19th) by which the Board is empowered to make orders, subject and according to the provisions of the Act, ‘for prohibiting or regulating the holding of markets, fairs, exhibitions, and sales of animals.’

This provision was not referred to at the debate, and I was not informed what orders the Board of Agriculture had made under the powers. Both parties treated this part of the case as depending on the 32nd section of the Act by which the Markets and Fairs Clauses Act is incorporated, and on the clauses of the Markets Act so incorporated.

The first sub-section of section 32 empowers the Local Authority to provide wharves and other places for ‘the landing, reception, keeping, sale, slaughter, or disposal of foreign or other animals, carcases, fodder, litter, dung, and other things.’

Sub-section 3, which has already been partially quoted, provides that such a wharf shall be a market within the Markets and Fairs Clauses Act, and ‘bye-laws shall be approved of by the Board of Agriculture,’ after notice and publication as required by the Markets and Fairs Act.

It is provided by section 42 of the Markets and Fairs Act that the undertakers shall make such bye-laws ‘for all or any of the following purposes,’ and, inter alia, ‘for regulating the use of the market place and fair, and the buildings, stalls, pens, and steadings thereon, and for preventing nuisances or obstructions thereon or in the immediate approaches thereto’ … ‘provided always that such bye-laws shall not be repugnant to the laws of that part of the United Kingdom where the same are to have effect.’ Then follow the 44th and 45th sections already referred to or quoted providing for the approval of the bye-laws by a Secretary of State, for whom the Board is now substituted.

It has been observed that the various powers conferred on the Board of Agriculture by previous sections of the Act are to be exercised simply by the issue of an order by the Board without the intervention of the Local Authority. The bye-laws authorised by section 32 are of the same general character as the orders mentioned in the previous sections. But apparently they are to be made in a different manner—no doubt for some good but not self-evident reason—namely, on the suggestion and action in the first instance of the Local Authority.

Now, the statutory validity of the bye-laws in question depends on these provisions, and the question is, Whether they are thereby authorised, either expressly or by implication?

It is maintained by the defenders that the bye-laws fall under the power, in section 32, imported from the Markets and Fairs Act, to make bye-laws for regulating the use of the market place or fair. The bye-law does, it is maintained, regulate the use of the Pointhouse Wharf, seeing that it provides that a part of it shall be used in a particular manner. The pursuers maintained that the clause in question relates only to the structure and area of the market and its approaches, and has no relation at all to the contracts between seller and buyer. They contended that it falls to be interpreted with special reference to the purpose and object of the statute, and that it could not empower a use of the market which bore no relation to that purpose and object. I think that this argument is sound to a certain extent, and that the power in question must be read with reference to the Act of 1894. I think that if the sole object of that Act were the prevention of disease and the regulation of the use of the wharf in carrying out that object, these rules could not be held as intra vires, because certainly they have no relation whatever to the prevention of disease, and no

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tendency to carry out that primary object of the Act.

But that is not the nature of the Act of 1894. It is a composite Act. Its main object, no doubt, is the prevention of disease; and that object is sought to be attained by very stringent regulations, requiring the slaughter of all cattle affected by disease, and the slaughter of all cattle sent from America and Canada, although not diseased. But then it provides not for their slaughter only but for their sale also; and it appears to come fairly within the scope of the Act that its administrators should take as much care as possible that their exclusion of food for the public benefit should be carried out with the smallest injurious effect to the food supply of the country. In committing to the Local Authority and Board the right and duty to regulate the use of the market, I think there was entrusted a power and duty to regulate the use of it in such a manner as to attain the double object of protecting the health of the public and of facilitating the access of the public to the food supply.

Therefore, in the due execution of the part of the Act which regulates the sale of foreign cattle, I think that it was within the scope of the Act to have regard to the public interest in the sale of the cattle.

A regulation for setting apart one part of the wharf for private sales, and another part for sales by auction, could not, I think, be challenged as not being a bye-law for the use of the wharf enacted in the due execution of the statute.

Again, suppose the Local Authority and Board had been so much impressed with the views of both parties as to set aside one ring for sales by auction without restriction, and another ring for sales restricted to fleshers buying for retail, I think that such a rule, whether rational or not, must have been admitted to be a bye-law to regulate the use of the market, made in the due execution of the statute.

And if that be so, it seems to me to follow that the enacting of the bye-law now in question was an exercise of exactly the same power. No doubt it has the effect of prohibiting altogether public sales of these animals, confined to members of the trade. But if it come within the character of a bye-law for the use of the wharf in execution of the Act, I am unable to see that that consequence can affect its validity.

Had it seemed good to the Local Authority and the Board to prohibit sales by auction of the cattle absolutely, I am not prepared to say that such a rule could be characterised as altogether without validity, although it might possibly have been challenged as capricious and unreasonable. But when the power to make bye-laws is committed to the Local Authority and the Board of Agriculture, the public is sufficiently guaranteed against regulations which can be so designated.

It was not maintained that the bye-laws in question could be held to be ultra vires on the ground of total unreasonableness, and I think it quite impossible so to hold. Whether the Local Authority and the Board of Agriculture have come to the right conclusion or not, it is certainly an intelligible and defensible view that the interests of the public would be best served by opening the markets unreservedly; and it seems to me that it was in their power to give effect to that view by this bye-law.

It is said that the bye-law is so widely expressed that it will disable the salesmen from refusing the bids of insolvent offerers. But I think that is not a necessary or reasonable interpretation of the bye-law. It cannot bind the salesmen to contract with offerers who cannot fulfil their contracts; and having regard to the circumstances under which the bye-law was passed, it can only be held to mean that the sales were to be open to all bona fide bidders able to pay.

It was further argued that the bye-law contravened the requirement in the Act that it should not be repugnant to the law of Scotland. The repugnancy was said to consist in this, that it prohibited the salesmen from attaching conditions to their sales, whereas it was otherwise the law that they were free to make their own conditions. I am of opinion that this objection is unfounded. It is not, I think, illegal to sell by auction to a limited class of buyers; but certainly, in general, sales by auction are open to all bidders, and would be held to be so if there was no stipulation to the contrary; and I think there is nothing repugnant to the law in a bye-law insisting that the sales on the Pointhouse Wharf shall be carried on under the usual conditions, and the bye-law does no more.

The defender's referred to a passage in the judgment of Lord Campbell when Chief Justice in the case of Edmunds v. The Watermen's Company, 1855, 1 Jur. N.S. 727, in which the law on this point seems very clearly expressed, A bye-law, his Lordship observed, cannot be said to be inconsistent with the laws of this country merely because it forbids the doing of something which might lawfully have been done before, or requires something to be done which there was no previous obligation to do, otherwise a nominal power of making bye-laws would be utterly nugatory. I think that these observations apply to and meet the defenders' argument on this point.

The defenders, the Local Authority, maintained that they could have made the regulation expressed in the bye-law in virtue of their proprietary right without the aid of either Board or statute. It is not necessary to deal with that argument, but I would not be understood as giving any assent to it. My opinion that the bye-law is intra vires is based solely on the statutes.”

The pursuers reclaimed.

The arguments of parties sufficiently appear from the opinions of their Lordships.

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At advising—