Scottish Court of Session Decisions

By the Aberdeen Municipality Extension Act 1871, the Town Council are empowered to cause the carriageway of any street to be paved with granite stones, and to recover the expense thereof from the frontagers in proportion to the frontage of their lands abutting on the street.

Section 145 provides—“The Town Council shall, three weeks before proceeding with the laying out, forming, paving, macadamising, or otherwise making good of any footways, channels, or gutters, or causeway or carriageway of any street at the expense -of the owners of the lands before or opposite to which such works shall be executed, cause a notice of their intention so to do to be inserted in at least one of the newspapers published in the city for two successive weeks, and such notice shall be and be deemed sufficient intimation to all the parties liable for the expense of such works.”

This was an action at the instance of Peter Macleod Cran, Chamberlain of the city of Aberdeen, against John Watt junior, as owner of heritable property in Berry Street, Aberdeen, to recover the sum of £35, 5s. 3d. as the proportion due by the defender of the expense incurred by the Town Council in paving the carriageway of the said street with granite stones in virtue of the powers contained in the foregoing Act.

The defender lodged defences, in which he maintained that the Town Council had not given due notice of their intention to execute the work in question in terms of the Act.

He averred—“(Ans. 7) The Town Council … inserted their notice twice only, and that within a period of five days, viz., in the daily Aberdeen Journal of Friday the 19th June 1896, and in the daily Aberdeen Journal of Wednesday the 24th June 1896. In point of fact the defender did not see the notice at all, and he was, from the failure of the Town Council to advertise in terms of the statute, not aware till after the work was executed that any resolution had been come to by them under which it was intended to fix liability upon him.”

The defender further averred—“At the date of said resolution ( i.e., to execute the work in question) there were published in the city of Aberdeen two daily newspapers, viz., the Aberdeen Journal and the Daily Free Press, and at the date of the passing of the said Act the Journal was published weekly on Wednesdays and the Free Press bi-weekly on Tuesdays and Fridays. Explained and averred that on a sound construction of said section the Town Council was bound either to cause their notice to be inserted in one or other of the daily papers each day (Sundays excepted) for two successive periods of seven days, or to insert the notice in four successive bi-weekly issues of the Free Press, or in two successive weekly issues of the Journal, or in any event, in the case of only one weekly insertion, the Town Council was bound to insert the second notice not earlier than the seventh day—that is, a full week-after the first, so that notice for two full and completed successive weeks or periods of seven days each might precede the currency of the statutory period of three weeks which had to elapse subsequent to advertisement of the notice before the contemplated work could be proceeded with.”

The pursuer admitted the defenders' averments with regard to the dates of the

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publication of the Aberdeen newspapers, and the dates when the advertisement relating to the work in question appeared.

The pursuer pleaded—“(1) The assessments specified in the condescendence having been duly imposed, and the defender being in respect thereof liable in payment of the amount sued for, and not having paid the same, the pursuer is entitled to decree against the defender as craved.”

The defender pleaded—“(4) Intimation by notice in terms of section 145 of the Act of 1871 being an essential condition of liability, and the Town Council having failed, to the loss of the defender, to give such notice, no statutory liability has been imposed on the defender, and he ought to be assoilzied with expenses.”

The Sheriff-Substitute ( Robertson), after hearing parties' procurators on the closed record, on 8th January 1901 pronounced an interlocutor, whereby (after sundry findings in fact based upon the averments and admissions of parties, which, so far as material, are set forth in the foregoing narrative) he found in law “(1) that on a sound construction of said section 145, the notices inserted were not a sufficient compliance with its terms; (2) that there being a want of the statutory notice, the proceedings following thereon were inept, to the effect of entitling the Town Council to do the work at the expense of the defender, and to assess him therefor,” and assoilzied the defender.

Note.—…“The first contention is, that proper notice was not given in terms of the statute.

Whether proper notice was given depends upon the construction to be put upon section 145 already quoted. Three weeks before proceeding with the work the Town Council had to cause a notice ‘to be inserted in at least one of the newspapers published in the city for two successive weeks.’

At the time when the statute was passed there was no daily paper published in the city—the Free Press was published twice a-week, and the Journal once a-week every Wednesday. In 1896, when the notice in question here was inserted, both these papers were daily papers. What the Town Council did was to insert a notice in the Journal on Friday 19th June, and a second notice on the following Wednesday.

The pursuer's contention is, that he fulfilled the requirements of the statute by inserting an advertisement in any day of two successive weeks, e.g., it would have been quite good to have inserted it on a Saturday and again on the following Monday, with only one day between.

Defender's contention, on the other hand, is that the use of the word ‘for’ shows that it was intended that there should be either ( a) where there was a daily paper, an insertion for each day of two weeks; or ( b) where there was not a daily paper but a weekly one, there should be two insertions a week apart; or ( c) in any event, if two insertions in a daily paper were sufficient, they must be a week apart.

In my opinion defender's contention is right. It was argued for pursuer that the words ‘for two successive weeks’ referred to the newspaper and not to the insertion. I do not agree. In my opinion, the common-sense ordinary meaning must be given to the clause which 99 people out of 100 would give to it, and that is, that the notice must appear for two successive weeks in one of the papers published in the city. The statute does not say ‘in’ two successive weeks, but ‘for,’ and the natural meaning of that is that there shall be two periods of seven days each in which intimation is given before the commencement of the currency of the three weeks spoken of. If I am right in this, the intimation by notice was insufficient, and I fancy the whole proceedings following thereon must be regarded as inept.

It was argued for pursuer that defender, while objecting to pay on the ground that he was being overcharged, had never raised this objection till the present action was raised, and further, that he had suffered no prejudice. No doubt the first part of this is true, and it is at least questionable if any serious prejudice can be averred or proved; but the Town Council's sole right to assess depends on the statute, and if the condition precedent on their proceeding to execute the works under their statutory powers is not fulfilled, I apprehend the whole proceedings following thereon must be inept. I must therefore, in the view I take, assoilzie the defender. (Case referred to, Ferguson v. Rodger, June 12, 1895, 22 R. 643).”

The pursuer appealed to the Court of Session, and argued—The notice given sufficiently complied with the requirements of the Act. It was clear that the words “for two successive weeks” could not mean upon each day of two successive weeks, in view of the fact that when the Act was passed there was no daily newspaper published in Aberdeen. The ordinary meaning of the word “week” was calendar week, i.e., the period beginning on Sunday and ending on Saturday. A notice inserted in a newspaper which was published on Friday was notice “for” that week. Similarly, a notice inserted in a newspaper published on the following Wednesday was notice “for” that week. The statute did not say that week meant any period of seven days, nor did it say that seven days must elapse between the dates of publication of the notice— Burton, July 17, 1850, 13 D. 40. The case of Ferguson v. Rodger, June 12, 1895, 22 R. 643, cited by the Sheriff-Substitute, was distinguishable. The notice in that case, which was held to be insufficient, was required as the foundation of diligence and heritable title. The pursuer further maintained, that even if the notice was insufficient the defect did not invalidate the assessment.

Argued for the defender and respondent—The notice was insufficient. The meaning of the Act was, that where there was a daily newspaper, publication must be made on each day of two successive weeks. The word “for” did not mean “in,” but throughout the duration of two successive weeks. Alternatively, its meaning was

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that a period of seven days must elapse between the first and second publication, and that the three weeks which must elapse before the work was commenced should not begin to run until the expiry of seven days after the second publication. If the appellant's argument were sound, it would be sufficient to give notice on Saturday of one week and on Monday of the following week. The case was ruled by Ferguson v. Rodger, supra, where the words of the Act requiring advertisement to be made were in distinguishable from those in the present case. He defender also cited Nisbet v. Cairns, March 12, 1864, 2 Macph. 863. The defender further maintained that, assuming the notice to be insufficient, the defect was fatal to the validity of the assessment.

In answer to a question from the bench, counsel for the pursuer and appellant stated that the contract for the paving of the street in question was signed on 20th August 1896, that is, more than five weeks after the insertion of the first advertisement on 19th June.