Scottish Court of Session Decisions

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Cite as: [1902] ScotLR 39_848, [1902] SLR 39_848

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Thursday, July 17. 1902.

39 SLR 848

Parish Council of Stornoway

v.

Parish Council of Edinburgh.

Subject_1Poor
Subject_2Settlement
Subject_3Residential Settlement
Subject_4Continuous Residence for More than Three Years and Less than Five during Period Some Years Prior to Commencement of 1898 Act — Poor Law (Scotland) Act 1898 (61 and 62 Vict. c. 21), sec. 1.
Facts:

A man who was born in the parish of A, resided continuously in the parish of B for three years and two months between March 1888 and May 1891. He thereafter resided in the parish of B from June 1893 to February 1895. He received temporary relief in February 1895 and September 1896, and ultimately became permanently chargeable in 1899. Held that his continuous residence in the parish of B for three years and two months between March 1888 and May 1891 was not such residence “before” the commencement of the Poor Law (Scotland) Act 1898 as to give a residential settlement under the provisions of section 1 of that Act, and that the pauper was now chargeable to his birth parish.

Parish Council of Falkirk v. Parish Councils of Govan and Stirling, June 12, 1900, 2 F. 998, 37 S.L.R. 759, distinguished and commented on per the Lord Justice-Clerk.

Headnote:

This was a special case presented for the opinion and judgment of the Court upon the question whether a pauper, John Maclennan, was chargeable to the parish of Stornoway or to the parish of Edinburgh.

The facts in the case were as follows:—John Maclennan was born in the parish of Stornoway in 1853. He resided in the following parishes for the following periods—( a) St Cuthbert's from March 1888 to May 1891, a period of three years and two
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months; ( b) Old City Parish of Edinburgh from May 1891 to June 1893, a period of two years and one month; ( c) St Cuthbert's from June 1893 to February 1895, a period of one year and eight months, and again from 13th April to 15th May 1895; ( d) New City Parish of Edinburgh from 15th May 1895 to September 1896, and from 23rd October 1896 to March 1897; ( e) Stornoway from March 1897 to the present time. The said John Maclennan became chargeable as a pauper from 27th February to 13th April 1895, and again from 17th September to 23rd October 1896, and was supported on the first occasion by the parish of St Cuthbert's, and on the second occasion by the New City Parish of Edinburgh. No statutory notice of his having become so chargeable was on either of these occasions sent to the parish of Stornoway. In 1899, while residing in the parish of Stornoway, he once more became chargeable as a pauper, and has remained so ever since. The statutory notice of his chargeability was given by the parish of Stornoway to the New City Parish of Edinburgh on 12th December 1899.

On 14th March 1895 the Secretary for Scotland, under and in virtue of the powers conferred upon him by the Local Government (Scotland) Act 1889, sec. 51, and the Local Government (Scotland) Act 1894, sec. 46, issued an order whereby a portion of the St Cuthbert's and Canongate Combination Parish, including the portion in which Maclennan had resided, was merged in the New City Parish of Edinburgh. This order came into operation on the 15th May 1895. On the 14th May 1895 the Secretary for Scotland, acting under the aforesaid statutes, also issued an order whereby the remaining portion of the said combination was merged in the parish of Leith as at 15th May 1895.

In these circumstances a dispute arose between the Parish Council of the Parish of Stornoway and the Parish Council of the City Parish of Edinburgh as to the settlement of John Maclennan, and the present Special Case was accordingly presented for the opinion and judgment of the Court.

The parties to the special case were—(1) the Parish Council of the Parish of Stornoway, and (2) the Parish Council of the Parish of Edinburgh.

The first parties maintained that the parish of the second parties was the parish of the pauper's settlement, and that he was chargeable to that parish. They contended that section 1 of the Poor Law (Scotland) Act 1898 was retrospective, that the pauper had consequently acquired a residential settlement in the parish of St Cuthbert's by his residence in that parish from March 1888 to May 1891, and that he had not lost that residential settlement since.

The second parties maintained that section 1 of the Poor Law (Scotland) Act 1898 was not retrospective beyond a period of chargeability previous to that Act, that in the case of parishes being amalgamated under the Local Government (Scotland) Act 1889, sec. 51, periods of residence in the former separate parishes were not to be added together so as to constitute a settlement in the united parish, that when Maclennan was last chargeable while resident in the parish of Edinburgh, i.e., between 17th September and 23rd October 1896, his settlement was in Stornoway, and that after his chargeability ceased on that occasion he had not resided long enough in the parish of Edinburgh to acquire a residential settlement there, either under the Poor Law (Scotland) Act 1845 or under the Poor Law (Scotland) Act 1898, and that the parish of Stornoway was now liable for his support.

The question of law stated for the opinion and judgment of the Court was—“Is the pauper chargeable to the parish of Stornoway, or is he chargeable to the parish of Edinburgh?”

The Poor Law (Scotland) Act 1898 by section 1 repeals section 76 of the Poor Law (Scotland) Act 1845, and enacts—“From and after the commencement of this Act [1st October 1898] no person shall be held to have acquired a settlement in any parish in Scotland by residence therein unless such person shall either before or after, or partly before and partly after, the commencement of this Act have resided for three years continuously in such parish, and shall have maintained himself without having recourse to common begging … and without having received or applied for parochial relief; and no person who shall have acquired a settlement by residence in any such parish shall be held to have retained such settlement if during any subsequent period of four years he shall not have resided in such parish continuously for at least one year and a day: Provided always that nothing herein contained shall, until the expiration of four years from the commencement of this Act, be held to affect any persons who at the commencement of this Act are chargeable to any parish in Scotland.”

Argued for the first parties—The pauper had acquired a residential settlement in St Cuthbert's parish by his residence therein from March 1888 to May 1891, and he had never lost it. The City Parish of Edinburgh now included the portion of the parish of St Cuthbert's in which the pauper had resided, and his residence therein was equivalent to residence in the City Parish of Edinburgh— City Parish of Edinburgh Parish Council v. Gladsmuir Parish Council, March 20, 1901, 3 F. 753, 38 S.L.R. 505. The Poor Law (Scotland) Act 1898, section 1, was retrospective, and substituted a three years' residence for one of five years Parish Council of Falkirk v. Parish Council of Govan and Stirling, June 12, 1900, 2 F. 998, 37 S.L.R. 759. The fact that he had become chargeable in 1895 and again in 1896, and had got relief on these occasions, did not affect the settlement he had acquired in 1891. The case of Johnston v. Black relied on by the second parties was not in point, and moreover it had been reconsidered in a subsequent case, viz.— Inspector of Poor of Inverkip v. Inspector of Poor of Greenock, November 14, 1893, 21 R. 64, 31 S.L.R. 82.

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Argued for the second parties—In 1891 the pauper had not a residential settlement in St Cuthbert's. The Poor Law (Scotland) Act of 1845 required five years' residence. In 1895, when he got relief from St Cuthbert's, and in 1896, when he got relief from the New City Parish of Edinburgh, his settlement was in Stornoway, and Stornoway would have been bound to pay had St Cuthbert's and the City Parish of Edinburgh demanded it— Johnston v. Black, July 13, 1859, 21 D. 1293; Simpson v. Allan, July 19, 1859, 21 D. 1363. The Poor Law (Scotland) Act of 1898 was not retrospective Urquhart v. Urquhart, July 1853, 1 MacQueen 658; Gardner v. Lucas, March 21, 1878, 5 R. (H.L.) 105, 15 S.L.R. 740.

At advising—

Judgment:

Lord Justice-Clerk—The question in this special case turns upon the construction to be put upon the word “before” in the first clause of the Act of 1898, whether it is to be read as applying under the word “before” to the acquiring of a residential settlement in the three years immediately before the passing of the Act, or whether it must be held to apply to any three years at any time before the Act was passed. In this case the period founded on by the parties of the first part as establishing a residential settlement is between March 1888 and May 1891. Giving the best consideration I can to the argument addressed to us very ably by Mr Ure and Mr Millar, I have been unable to hold it to be a sound construction of the clause that it refers to any period of three years before the passing of the Act however remote, but refers only to the three years which concluded at the passing of the Act. It appears to me that the purpose was not to alter the period for acquiring a settlement so as to operate in cases where there had been three years residence 10, 20, 30, or it might be 40 years ago, but only to provide that where at the passing of the Act a person was found in the position of having three years' residence the Act should apply, and it should not be necessary that two years more should run so as to complete the time required by the Act of 1845. I think that construction is an entirely reasonable construction of the words of the Act, and that any other construction would be unreasonable, and would lead to such anomalous results that it can scarcely be conceived that it could be contemplated when the Act was passed. If there was any case decided in this Court in which the latter reading had been distinctly upheld, I should respectfully express my dissent from it, and if it were in circumstances anything similar to the present, might desire that the case should be considered by a more full Bench before yielding to adopt such a view. I do not think that the case quoted to us calls for such action. In that case the question was not the same as in this case. It related to the relief given to the widow of a man who died before the Act of 1898 came into operation, and who, if he himself had become chargeable before he died, could not have been held to have acquired a settlement by residence, seeing that the law applicable to residence for three years was not then in operation. The question was really one of derivative settlement by the wife, who was found entitled to relief after his death. Here the pauper had been receiving relief long after the lapse of the three years, which are founded on as giving him a settlement in St Cuthbert's, and at the time he did receive that relief it is undoubted that by receiving relief in 1895 any effect of the previous residence towards making a settlement under the law then in force was wiped out. I will content myself with saying, as at present advised, that I would not have concurred in that judgment. In my opinion the first alternative of the question should be answered in the affirmative and the second in the negative.

Lord Young—In this case I think it sufficient to say that I am of opinion that in the circumstances of this case the pauper is chargeable to the Parish of Stornoway.

Lord Trayner—It is admitted that the birth settlement of the pauper is in Stornoway, and that that parish is chargeable with his support unless he has acquired a residential settlement in some other parish. It is maintained by the first party that the pauper did acquire a residential settlement in St Cuthbert's (now represented by the parish of Edinburgh) by virtue of a residence there for three years and two months immediately prior to May 1891. This is maintained, not upon the law as it existed in 1891, but as the effect of the law passed in 1898. It is certain, and was not disputed, that if the question of the pauper's chargeability had arisen at any time prior to the commencement of the 1898 Act, chargeability for the pauper would have fallen on the parish of Stornoway. By the Act of 1845 five years' residence was necessary for the acquisition of a settlement, and such residence the pauper in this case never had in any parish. But the Act of 1898 repealed the 76th section of the Act of 1845, and provided that from and after its commencement (1st October 1898) a residential settlement should be acquired by three years' continuous residence “either before or after or partly before and partly after the commencement of this Act.” The first party maintains that under this provision, which he says is retrospective, he is entitled to rely on the three years and two months' residence in St Cuthbert's prior to May 1891 as giving the pauper a residential settlement there, because that residence was “before” the commencement of the 1898 Act. I cannot so read the provision of the Act of 1898. That Act is retrospective in a certain sense, because it gives effect to residence not merely after the date of its commencement but also to a residence of three years wholly or partially before that date. But I think the residence before the date of the commencement of the Act to which the provision in question refers is residence immediately before, and not separated therefrom by any interval of time however long, and irrespective of the history of the

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pauper during that interval. The repeal of the 76th section of the Act of 1845 did not repeal or affect the rights acquired or the obligations incurred in respect of that section before the repealing Act was passed. Now, the pauper in this case obtained parochial relief in February 1895, the effect of which under the existing law (so far as the acquisition of a residential settlement was concerned) was to wipe out the residence of three years and two months in St Cuthbert's parish as if it had never existed. A residence such as would result in the acquisition of a residential settlement must of necessity have commenced after the rehabilitation of the pauper—that is, after he had ceased to get parochial relief. Was the Act of 1898 intended, or does it, whether intended or not, resuscitate a residence which under the Act of 1845 had clearly been wiped out and extinguished? I cannot think so. I give full effect to the words, and I think the intention of the Act, when I read the three years' residence “before” the Act to mean the three years immediately before, and in so reading the Act all rights and obligations existing in October 1898 are preserved, and the benefit of that Act in no way restricted.

The pauper's settlement on 30th September 1898 was admittedly his birth settlement—that is, in Stornoway. He had then no other. I think the Act of 1898 did not at its commencement confer on him a different settlement, and I would answer the question put to us by finding that the pauper is chargeable to the parish of Stornoway.

Lord Moncreiff was absent.

The Court pronounced this interlocutor—

“Answer the question of law stated in the special case by finding that the pauper John Maclennan is chargeable to the parish of Stornoway: Find and declare accordingly, and decern.”

Counsel:

Counsel for the First Parties— Ure, K.C.— J. H. Millar. Agents— Tods, Murray, & Jamieson, W.S.

Counsel for the Second Parties— Dundas, K.C.— Cooper. Agent— R. Addison Smith, S.S.C.
1902