Scottish Court of Session Decisions

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Cite as: [1899] ScotLR 37_14, [1899] SLR 37_14

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SCOTTISH_SLR_Court_of_Session

Page: 14↓

Court of Session Inner House First Division.

Thursday, October 26. 1899.

37 SLR 14

Town Council of Peterhead and Others

v.

Aberdeenshire County Council and Others.

Subject_1Police
Subject_2Burgh Police Act 1892(55 and 56 Vict c. 55), sec. 81
Subject_3Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), sec. 60.
Facts:

Held that section 81 of the Burgh Police Act 1892 extends the provisions of the Local Government Act 1889, with reference to the policing of burghs with a population under 7000, to burghs with a population over 7000 and under 20,000 and not maintaining a separate police force of their own; and consequently that a county council is not entitled to meet the cost of policing such a burgh by levying a direct assessment upon lands and heritages within that burgh.

Headnote:

Page: 15↓
This was a special case brought by the Town Council and Commissioners of Peterhead and certain occupiers of lands within the burgh, first and fourth parties, and the County Council of Aberdeenshire and certain owners of lands within the burgh, second and third parties, to determine, inter alia, the following questions:—“(1) Are the second parties entitled to meet the cost of maintaining a police service for the police district, which consists of the parliamentary burgh of Peterhead, by levying a direct assessment upon the ratepayers within the said burgh under and in virtue of the powers conferred upon their predecessors, the Commissioners of Supply, by the Police (Scotland) Act 1857? (2) In the event of the first question being answered in the negative, are they entitled to call upon the first parties to meet the cost of the constabulary service within the said burgh by putting in force the provisions of section 81 of the Burgh Police (Scotland) Act 1892?”

The facts out of which those questions arose were as follows:—Peterhead was a parliamentary burgh with a population of about 12,000. In 1858 it had been formed into a police district by the Commissioners of Supply in terms of section 58 of the Police (Scotland) Act 1857 (20 and 21 Vict. cap. 72), and the cost of policing it was met until 1889 by an assessment levied by the Commissioners of Supply upon owners of lands and heritages within the burgh, in terms of section 59 of the same Act.

By section 11 of the Local Government Act 1889 (52 and 53 Vict. cap. 50) the powers and duties of the Commissioners of Supply were transferred to the County Council, and thereafter the County Council continued to police the burgh, and to defray the cost of so doing by levying a direct assessment upon owners within the burgh.

In consequence, however, of the decision of the Court in M'Arthur v. County Council of Argyll, March 18, 1898, 25 R 829, the County Council came to be of opinion that it was not competent for them to assess directly within the burgh in terms of the Police Act of 1857. They therefore resolved in 1898 not to levy the assessment as heretofore, but to call upon the Town Council of Peterhead in terms of section 81 of the Burgh Police Act of 1892 to pay for the policing of the burgh out of the burgh general assessment, which the Town Council agreed to do for the current year. The result of this was that under section 340 of the last-named Act the burden of the maintenance of the police was transferred from the owners to the occupiers within the burgh.

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), sec. 60, sub-sec. (3), enacts, with reference to burghs the population of which is under 7000, that “every such burgh shall contribute to the county fund in aid of the expenditure thereout for the administration of the police.” Sub-sec. (4) provides for the ascertainment of the proportion payable by each burgh, and proceeds—“but the amount of the contribution apportioned to the burgh shall not be assessed by the county council on the several lands and heritages in such burgh, but shall be paid by the town council out of the police assessment.”

The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 81, enacts that “all other burghs [ i.e., burghs other than (1) those which at last census had a population of not less than 7000, and at the date of the passing of the Act maintained a separate police force, and (2) burghs which at last census had a poulation of not less than 20,000], shall be supplied with constables by the counties in which they are situated, under the provisions of the Local Government (Scotland) Act 1889, or in the option of the commissioners of the burgh under the provisions hereinafter contained.” The provisions referred to are as follows:—“It shall also be lawful for the commissioners of such burghs, and they are hereby required,” to agree with the county council as to the amount of the burgh's contribution, or to have it determined by the Sheriff, “and so long as the sums either fixed by agreement or determined as aforesaid, are duly paid by the commissioners of such burghs, all the powers to assess for the purposes of the said Police Act 1857, within the burgh for which the same are paid, shall be suspended.”

No such agreement had been entered into by the Commissioners of Peterhead and the County Council, nor had the amount of the town's contribution been determined by the Sheriff.

The County Council rested their contention and argument chiefly upon the latter part of sec. 81, quoted above, founding particularly upon the suspension of the powers to assess under the Police Act of 1857.

The Peterhead Commissioners argued, on the other hand, that the County Council had still power to assess within burgh, that the case of Macarthur applied only to the County General Assessment, and that the suspension of the powers to assess under the Act of 1857 only became operative when town councils exercised the option conferred on them by sec. 81 of the Act of 1892

At advising—

Judgment:

Lord President — In my opinion the County Council are entitled to prevail; but they have created the only difficulty in the case by resting their claim on a wrong ground. (But for this, I may add, they would have had a decision last session.)

Peterhead being a burgh with a population not less than 7000, and not having a separate police force, falls under section 81 of the Burgh Police (Scotland) Act 1892. The County Council quite erroneously maintain that it falls under the latter portion of the section—a contention which is refuted by the consideration that what they call the latter portion of the section forms part of the alternative system stated in the section; that Peterhead has not elected the alternative system; and that it is only by the option of the burgh that this alternative system can come into play.

Page: 16↓

The result is that the first alternative stated in the opening words of the section has effect, and accordingly Peterhead is at present supplied with constables under the provisions of the Local Government (Scotland) Act 1889. I say “at present” because this is so only unless and until the burgh choose to go under the second alternative. Now the provisions thus referred to are plainly the provisions which, as the Act of 1889 itself stood, applied only to burghs having a population under 7000. In short, the Burgh Police Act of 1892 extends to burghs like Peterhead the system originally applicable to burghs under 7000. It might have said so in so many words, but then this would not be in the style of the Act. Now, the provision about assessment in the Act of 1889 is in section 60, and the system is in its nature perfectly applicable to any burgh whether under or over 7000. The County Council fixes the amount of contribution due for police by the burgh, but the amount so fixed, says the section, shall not be assessed by the County Council on the several lands and heritages in the burgh, but shall be paid by the Town Council out of the police assessment, or if there is no police assessment out of any other assessment imposed and levied therein. For the amount thus required the Town Council of course assess as part of their own assessment. In short, the County Council requisitions the Town Council for the sum they require, and the Town Council raises the amount by exercising their own powers of assessment.

I am for answering the first query in the negative, and therefore the third and fourth queries do not arise. The second question I would answer by declaring that the second parties are entitled to call upon the first parties to pay to them the cost of the constabulary service within the burgh in manner prescribed in section 60 of the Local Government (Scotland) Act 1889 as affected by section 59 of the Police (Scotland) Act 1857. I may add that I am glad that as Peterhead has not elected it, we have not to construe the second alternative part of section 81, for it is involved and obscure. Accordingly, to any burgh thinking of electing that alternative I should suggest the expediency of being first well advised as to what exactly are the consequences. The only thing tolerably clear is that the mode of assessment will be just the same as under the first alternative.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court answered the first question in the negative, and answered the second question by declaring that the second parties were entitled to call upon the first parties to pay to them the cost of the constabulary service within the burgh in manner prescribed by section 60 of the Local Government (Scotland) Act 1889 as affected by section 59 of the Police (Scotland) Act 1857.

Counsel:

Counsel for the Second and Third Parties— Balfour, Q.C. — W. Brown. Agents — Macpherson & Mackay, S.S.C.

Counsel for the First and Fourth Parties — Sol.-Gen. Dickson, Q.C. — Chisholm. Agent — R. C. Gray, S.S.C.
1899