Scottish Court of Session Decisions

The Commissioners of the burgh of Wishaw brought this action in the Sheriff Court at Hamilton against the Cleland Co-operative Society, the prayer being “To interdict the defenders from erecting within two miles from the boundaries of the burgh of Wishaw, the same not being within the boundaries of any other burgh, a slaughterhouse, and from using any building within the said distance from the boundaries of the burgh of Wishaw, such building not being within the boundaries of any other burgh, any premises for the slaughter of cattle and sheep and other animals, without the consent of the pursuers.”

The Burgh Commissioners averred that they had erected a slaughterhouse for Wishaw, which fell under the provision of section 284 of the Burgh Police (Scotland) Act 1892 (quoted in rubric), and that the Co-operative Society were engaged in erecting a slaughterhouse on a site within two miles of the boundaries of Wishaw.

The Co-operative Society admitted that they were erecting a slaughterhouse on the site mentioned, but denied that it was within two miles of Wishaw. They averred that they had obtained the sanction of the District Committee of the County Council of Lanarkshire, acting as the local authority under section 32 of the Public Health (Scotland) Act 1897.

Section 32 of that Act, after prohibiting the establishment of certain businesses, including slaughterhouses, without sanction, provides (sub-section 2)—“The local authority shall give their sanction by order” … “and where the local authority grants or withholds such sanction, any person aggrieved may appeal to the Board, whose decision shall be final.”

The defenders pleaded, inter alia—“(1) No jurisdiction. (2) Action incompetent. (3) The defenders having received the sanction of the local authority to establish the said business, they ought to be assoilzied, with expenses.”

The Sheriff-Substitute ( Mark Davidson) on 31st October 1898 repelled the first and second pleas-in-law for the defenders and allowed a proof.

Note.—“The defenders take objection to the competency of the action on the ground that they have a right to erect a slaughterhouse from the district committee of the county council, which is by the Act of 1897 constituted a Court; and that the pursuer's proper course is to appeal against their decision in the manner provided by the Act. I do not decide on the question whether a Court is constituted by an Act or not, though I think such a proposition would be difficult to establish. But whether the local authority be a Court or not, I am quite clear that the jurisdiction of this Court, in a matter of the kind under discussion, is not excluded. The Act of 1892 distinctly prohibits the erection of a slaughterhouse within two miles of a burgh which has a slaughterhouse of its own, and no one has any more right to erect a slaughterhouse in such a position than he has to build a cottage on another man's ground, or to carry on business in another man's shop, without his consent. The magistrates of a burgh are a properly constituted Court for licensing the sale of intoxicating drink, but if they happened to grant a licence to a person to sell drink in premises to which he had no right, that would not be a bar to his ejection at the instance of the true owner, nor would the latter require to appeal to a bench of justices in the Confirmation Court. The case of Kennedy v. Wyse, 17 R. 1036, on which the defenders rely, does not seem to me to be in point. There were two grounds for the decision in that case—that the defender was asked to deliver articles of which he could not have possession, and that the matter was res judicata. These are not pleas in any way applicable to this case.”

The Co-operative Society appealed to the Sheriff ( Berry) who on 23rd December 1898 adhered.

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A remit was made to Mr Gavin Paterson, architect, Hamilton, to report on the distance of the defenders' slaughterhouse from the boundaries of the burgh of Wishaw.

On his reporting that it was within two miles the Sheriff-Substitute on 13th June 1899 granted interdict as craved.

The Co-operative Society appealed to the Court of Session.

Argued for the appellants—The action was an attempt to review the decision of the local authority. The Public Health Act provided that appeal should be made to the Local Government Board, and therefore the Sheriff had no jurisdiction. The local authority was a Court co-ordinate with that of the Sheriff, and the Sheriff had therefore no power to review its decision. As the proposed slaughterhouse was outside Wishaw, the Commissioners had no interest to object to it. They could prevent the butchers of Wishaw resorting to it— Derrick v. Black, December 10, 1889 17 R. J.C. 9.

Counsel for the respondents were not called upon.