Scottish Court of Session Decisions

On 21st December 1900 the Glasgow Court Houses Commissioners, incorporated under the Glasgow Court Houses Amendment Act 1872, raised an action against the County Council of the county of Lanark, and also against the Corporation of the City of Glasgow, and the Provost, Magistrates, and Council of the Royal Burgh of Rutherglen, for any interest they might have, in which the pursuers asked decree against the first-named defenders for £7669, with interest at 5 per cent. from 16th December 1899 till payment. The principal sum sued for was the amount assessed upon the County Council of Lanark by the Glasgow Court Houses Commissioners in terms of a resolution passed at a meeting of the Commissioners held on 24th November 1899. The County Council of Lanark lodged defences.

The circumstances which led to the action, and the contentions of parties, are set forth in the following opinion annexed to the interlocutor of the Lord Ordinary (Low)—“By the Glasgow Court Houses Act 1890 the pursuers were authorised to acquire certain lands and buildings for the purpose of enlarging and improving the Sheriff and Justice of Peace Court Houses in the city of Glasgow. For the purposes of the Act the pursuers were authorised to borrow, upon the security of the assessments to be levied by them under the provisions of the Act, a sum not exceeding £100,000.

By the 13th section of the Act it is provided—‘The Commissioners may apportion, assess, and charge the sums of money from time to time borrowed and outstanding under the powers of this Act, and all interest due thereon, upon the several bodies mentioned in the schedule to this Act annexed, in proportion to the gross valuation for the year ending on the 15th day of May 1890, of the lands and heritages situated within the respective areas under the jurisdiction of such public bodies, and such public bodies shall be bound as quickly as possible to pay to the Commissioners any such sums so apportioned, assessed, and charged.’ …

The public bodies mentioned in the schedule are the Magistrates of Glasgow, the County Council of the county of Lanark (the only defenders who have lodged defences), and the Magistrates of Rutherglen.

The pursuers now sue the defenders for payment of £7669, which they allege to be the proportion of money borrowed under the Act which has been charged upon and is payable by the defenders in terms of the 13th section.

The sum sued for has been arrived at by taking the gross valuation for the year 1890 of all lands and heritages within the whole county of Lanark, and by including as within the county a certain area (the valuation of which for the year 1890 was £354,859) which in 1891 (by the City of Glasgow Act 1891) was taken out of the Lower Ward of the county and added to the city of Glasgow.

The defenders maintain (1) that in fixing the amount of the borrowed money which they are to contribute the pursuers are not entitled to take into account the valuation of the county of Lanark as a whole, but only of the Lower Ward; and (2) that it is not competent for the pursuers to treat lands which are in fact in the city of Glasgow as forming part of the county.

For the purpose of providing and maintaining Sheriff Court Houses the county of Lanark is divided into four separate districts, one of which, the Lower Ward district, comprises the Lower Ward of the county, the City of Glasgow, and the Burgh of Rutherglen. The remaining wards of the county are in other districts, and have nothing to do with the Glasgow Sheriff Court Houses. Further, the defenders maintain that the whole of the sum charged upon them under the 13th section of the Act of 1890 falls to be paid by assessment upon the Lower Ward alone.

In these circumstances the defenders, contention is, that the words in the 13th section ‘lands and heritages situated within the respective areas under the jurisdiction of such ‘public bodies,’ refer, so far as the

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defenders are concerned, only to the Lower Ward.

The pursuers, on the other hand, maintain that the 13th section is not open to construction, and that as the jurisdiction of the defenders undoubtedly extends over the whole county of Lanark, the valuation of the whole county must be taken in fixing the proportion of the borrowed money to be paid by them.

Now, I agree with the pursuers to this extent, that, prima facie, the area over which the County Council has jurisdiction is the whole county. But I think that the words used in the 13th section are capable of construction, and that the context and the subject-matter of the enactment may show that they were intended to be used in a more restricted sense than that which they would naturally bear if standing alone.

The 13th section, in the first place, and in the part under construction, only provides how the proportions of money borrowed by the pursuers, payable by the three public bodies named, are to be ascertained, and it is then enacted that ‘such public bodies shall be bound as quickly as possible to pay to the Commissioners any such sums so apportioned.’ Now, of course a county council is only a representative body, and I think that the presumption is that the capacity in which it is directed to pay the money is also the capacity in which it is referred to for the purpose of fixing the proportion which it is to pay. If therefore the defenders are given power to assess the whole County for the Glasgow Sheriff Courts, there is no difficulty. But if the defender's power of assessment is limited to the Lower Ward, it is difficult to see any principle upon which the amount which they have to pay, in a question with the City of Glasgow and the Burgh of Rutherglen, should be fixed by reference to the valuation, not of the Lower Ward but of the whole County. It was said that the buildings which the pursuers are authorised by the Act to erect are to be used as an Appeal Court for the County as a whole. That would have been a very good reason for making the whole County contribute, but I do not think that it is any reason why the Lower Ward should contribute more than its proportion.

The main question therefore seems to me to be, whether the defenders have power to raise money to pay the amount charged against them under the 13th section, except by assessments laid upon the Lower Ward only?

The assessing clauses of the Act of 1890 are the 10th and the 15th, but in order to understand the effect of these sections it is necessary to go back to earlier statutes.

The Glasgow Court Houses Amendment Act 1868 proceeded upon the narrative that ‘it would be for the advantage and convenience of the said City’ (of Glasgow), ‘and of the Lower Ward of the County of Lanark’ (including the Burgh of Rutherglen) ‘that additional accommodation should be provided for the judges attending the Justiciary Courts at Glasgow, and for the Sheriffs, Justices of Peace, Magistrates and Council, and inhabitants of the said County and City.’ The Commissioners were therefore empowered to acquire lands and to erect court houses, and for defraying the expense of doing so they were by section 10 authorised ‘to levy and raise by assessment annually, for such period as they may find to be necessary, on and from all heritages situate within the parliamentary and municipal boundaries of the City of Glasgow, and within the Lower Ward of the County of Lanark, including the Burgh of Rutherglen, such sums of money as shall be sufficient for the several purposes before mentioned.’

The buildings authorised by the Act of 1868 were duly constructed, and in 1878 certain arrangements had been made between the Commissioners and the City of Glasgow and the Lower Ward, the result of which was that (to use the words of the preamble of an Act which was passed in the latter year for the purpose, inter alia, of giving effect to these arrangements) ‘the only amount which the Court House Commissioners will require to levy under the Court Houses Acts will be the amount necessary to defray the expenses of maintaining that portion of the said buildings occupied by the Justices of Peace Court, and the buildings occupied by the Justiciary Court.’

Accordingly, by the 6th section of the Glasgow Municipal Buildings Act 1878 it was provided—‘On the passing of this Act the power of the Court Houses Commissioners to levy assessments under section 10 of the Glasgow Court Houses Amendment Act 1868 shall cease and determine, and in lieu thereof the Court Houses Commissioners are hereby authorised to estimate, apportion, assess, and charge, in manner after mentioned, the amount necessary to meet the costs, charges, and expenses of conducting the business of the Court Houses Commissioners, and of maintaining and repairing the buildings apportioned to, and occupied by the Sheriff Courts, Justices of Peace, Justiciary Court, and their several officials, and generally in carrying into effect the purposes of the Court Houses Acts, as amended by this Act, so far as such costs, charges, and expenses shall not be borne by the Commissioners of Her Majesty's Treasury.’

By the 7th section it was provided that in lieu of an assessment under the 10th section of the Act of 1868 being levied by the Commissioners within the City of Glasgow, the Corporation should pay to the Commissioners year by year ‘out of the assessment by this Act authorised,’ such sum as the Commissioners should apportion as the share payable by the Corporation.

The powers of assessment by the Corporation there referred to are to be found in section 29 and subsequent sections of the Act.

By the 8th section it was provided, that in lieu of an assessment under the 10th section of the Act of 1868 being levied by the Commissioners within the Lower Ward of Lanarkshire, the public bodies having powers of assessment within that ward

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should pay to the Commissioners the sum apportioned as the share of the Lower Ward out of certain specified assessments.

By the Act of 1878, therefore, this change was made in the mode of assessment, that instead of the Glasgow Court Houses Commissioners themselves laying on assessments directly, they merely fixed the amounts payable by the City and the County respectively, and the assessments necessary for raising the money were laid on by the local authorities.

Coming now to the Act of 1890, it was provided by section 10 that the costs, charges, and expenses of purchasing lands and buildings, and of reconstructing and improving buildings, and the like, ‘under the authority of the Act, shall be deemed and held to form part of the costs, charges, and expenses mentioned in section 6 of the Act of 1878, and the power of assessment by that Act conferred upon the Commissioners shall apply to and include all such costs, charges, and expenses.’

The pursuers argued that that section had nothing to do with money borrowed under the powers conferred by the Act, but only applied, like the provision in the Act of 1878, to annual expenses. I cannot take that view. The section applies to the cost of the purchase of lands and other capital expenditure, and the power of assessment is given to enable the pursuers to raise the amount necessary to meet such costs. It seems to me that the assessments authorised in this section are the very assessments upon the security of which the pursuers are authorised to borrow money for the purposes of the Act.

The 15th section of the Act comes in place of the 8th section of the Act of 1878, and provides that the County Council of Lanark (the defenders) ‘as representing the Lower Ward thereof and the police burghs therein,’ and the Magistrates and Town Council of Rutherglen, shall pay to the pursuers, out of certain specified assessments ‘such sums as the Commissioners shall estimate, apportion, assess, and charge as the shares payable respectively by the said County Council and Magistrates of the Boyal Burgh of Rutherglen, for the costs, charges, and expenses of carrying into effect the Court Houses Acts and this Act and the Act of 1878, so far as applicable to the Commissioners.’

No provision is made in the Act of 1890 for the way in which any sum apportioned by the pursuers to the City of Glasgow is to be raised by the Corporation, and I imagine that the provisions of the 7th section of the Act of 1878 are still applicable to them.

I therefore think that it is plain that whatever sum is apportioned to the defenders under the 13th section must be raised by them by assessment upon the Lower Ward alone, and accordingly I am of opinion that the construction of that section for which the defenders contend must be adopted. As I have already indicated, it seems to me that the words ‘the respective areas under the jurisdiction of such public bodies,’ are capable of being read as referring only to areas which are under their jurisdiction for purposes connected with the Glasgow Court Houses, with which alone the Act deals. I quite recognise that the fact that in the schedule the County Council are named without any words of limitation, whereas in the 15th section they are described ‘as representing the Lower Ward,’ is a point in favour of the pursuers' view, but I do not think that that is sufficient ground for holding that the words in the 13th section are not open to construction, or for putting a different construction upon them than that which would otherwise fall to be adopted.

The next question is, whether the pursuers, in allocating the borrowed money among the three public bodies, are justified in calculating the amount payable by the defenders upon the basis of the valuation of the Lower Ward as it stood in 1890, and before a large part of its area was added to the City of Glasgow.

The last clause in the 10th section of the Act of 1890 appears to me to have a direct bearing upon that question. It is in these terms—‘Provided that such powers of assessment shall be held to apply to the whole area included within the municipal boundaries of the City and Royal Burgh of Glasgow, as the same may be extended under any Act of Parliament, including any portion of the County of Renfrew over which such area may extend.’

Now, if I am right in the construction which I have already put upon the assessing sections, the words ‘powers of assessment’ in that clause simply mean the power which the pursuers have of fixing the amount which the Corporation must raise by assessment, and that is just what the pursuers are empowered to do in regard to borrowed money by the 13th section. The clause therefore seems to me to amount to this, that in allocating the sum for which the Corporation are to assess, the pursuers are to have regard to the whole area which is in fact included within the City of Glasgow at the time when the assessment or allocation is made.

And that view appears to me to be quite consistent with the 13th section. The main object of that section is to fix the proportions in which money borrowed under the authority of the Act shall be paid by the three public bodies named. The words are, ‘in proportion to the gross valuation for the year ending on the 15th day of May, One thousand eight hundred and ninety, of the lands and heritages situated within the respective areas under the jurisdiction of such public bodies.’ Now, it is clear that the value of the assessable subjects within the three areas is to be taken from the valuation roll of 1890 alone, but I do not think that it follows that the extent of the respective areas is also to be taken in all time coming as that which existed when the roll of 1890 was made up. The words used are no doubt capable of bearing that meaning, but I also think that they are capable of

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meaning that the value as given by the roll of 1890 shall be applied to the areas which at the time when the allocation is made are in fact under the jurisdiction of the respective public bodies. And it seems to me that there is a sufficient reason for adopting the latter construction. What the Commissioners are empowered to assess and charge upon the three public bodies are the sums of money ‘from time to time’ borrowed and outssanding. The Act therefore contemplated that the pursuers might exercise their borrowing powers gradually, and might charge and assess upon the public bodies one sum one year and another sum another year. Now, if the pursuers are bound to assess the Corporation of Glasgow and the defenders according to the respective areas of the City of Glasgow and the Lower Ward as appearing in the valuation roll of 1890, although since that roll was made up these areas have entirely changed, it is plain that the proportions fixed by the 13th section will be entirely overturned. I am therefore of opinion that the duty of the pursuers is to apportion the sum to be assessed according to the areas actually included within the City of Glasgow and the Lower Ward respectively, but upon the basis of the value of the lands and heritages within these areas as given in the valuation roll of 1890. Such an apportionment seems to me to satisfy the language of the 13th section, and to maintain the proportions thereby directed.

I am therefore of opinion that upon both the questions raised in the case the defenders are entitled to prevail.”

On 15th June 1900 the Lord Ordinary pronounced the following interlocutor—“Finds that the pursuers, in ascertaining the amount for which they are authorised to charge and assess the defenders the County Council of the County of Lanark, in terms of the 13th section of the Glasgow Court Houses Act 1890, are not entitled to take into account the valuation for the year ending on the 15th day of May 1890 of the lands and heritages within the whole county of Lanark, but only within the Lower Ward thereof; and further, that the pursuers are bound to deduct from the said valuation of the Lower Ward, and to add to that of the City of Glasgow, the valuation of those parts of the Lower Ward taken from the county and annexed to the city by the City of Glasgow Acts 1891 and 1896.”

The pursuers reclaimed.

The arguments on both sides turned wholly upon the terms of the Acts of Parliament, and sufficiently appear from the opinions of the Court.

At advising—