Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1903 (3 Ed. VII, cap. 33), section 55, provides—“Without prejudice to any powers possessed by them under the existing law, the town council of a burgh shall, subject to the like conditions, have the like powers of opposing bills or provisional orders as are conferred upon county councils by section 56 of the Local Government (Scotland) Act 1889 as read with the Private Legislation Procedure (Scotland) Act 1899, and any expenses incurred by them in any year in the exercise of the last-mentioned powers may be defrayed in whole or in part from any assessment or from any two or more separate assessments levied by them in such year or in the following year, all as the town council may determine. Provided that any ratepayer who is entitled to an exemption from any assessment leviable by the town council may appeal to the Secretary for Scotland againstanysuchdetermination, and his decision shall be final.…”

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), section 56, provides—“The council of a county shall have the same powers of opposing bills in Parliament, and of prosecuting or defending any legal proceedings necessary for the promotion or protection of the interests of the county, as are conferred by the Act of the thirty-fifth and thirty-sixth years of Her present Majesty, chapter ninety-one; and, subject as hereinafter provided, the provisions of that Act shall extend to a county council as if such council were included in the expression ‘ governing body’ and the county were the district in the said Act mentioned : Provided that (a) no consent of owners and ratepayers shall be required for any proceedings under this section; (b) this section shall not empower a county council to promote any bill in Parliament or to incur or charge any expense in relation thereto, save only a bill for confirming a provisional order made under or in pursuance of the provisions of any Act of Parliament; (c) the consent of the Secretary for Scotland shall be substituted for the consent of the Secretary of State or Local Government Board.”

The Municipal Corporations (Borough Funds) Act 1872 (35 and 36 Vict. cap. 91), sec. 2, provides—“When in the judgment of a governing body in any district it is expedient for such governing body to promote or oppose any local and personal Bill or Bills in Parliament, or to prosecute or defend any legal proceedings necessary for the promotion or protection of the interests of the inhabitants of the district, it shall be lawful for such governing body to apply the borough fund, borough rate, or other the public funds or rates under the control of such governing body, to the payment of the costs and expenses attending the same, and when there are several funds or rates under the control of the governing body, such governing body shall determine out of which fund or funds, rate or rates, such expense shall be payable and in what proportions..…”

Section 4—“No expense in relation to promoting or opposing any Bill or Bills in Parliament shall be charged as aforesaid, unless incurred in pursuance of a resolution of an absolute majority of the whole number of the governing body at a meeting of the governing body, after ten clear days’ notice by public advertisement of such meeting and of the purpose thereof in some local newspaper published or circulating in the district, such notice to be in addition to the ordinary notices required for summoning such meeting, nor unless such resolution shall have been published twice in some newspaper or newspapers circulating in the district, and shall have received, in respect of matters within the

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jurisdiction of the Local Government Board the approval of such Board, and in respect of other matters the approval of one of Her Majesty's Secretaries of State; and in case of the promotion of a Bill in Parliament, no further expense shall be incurred or charged as aforesaid after the deposit of the Bill, unless the propriety of such promotion shall be confirmed by such absolute majority at a further special meeting to be held in pursuance of a similar notice not less than fourteen days after the deposit of the Bill in Parliament. Provided further, that no expense in promoting or opposing any Bill in Parliament shall he charged as aforesaid unless such promotion or opposition shall have had the consent of the owners and ratepayers of that district to be expressed by resolution in the manner provided in the Local Government Act (1858) for the adoption of that Act.”

Section 5—“The approval of the Local Government Board or one of her Majesty's Principal .Secretaries of State, as the case may be, shall not be given to any such resolution as aforesaid until the expiration of seven days after the second publication thereof as provided by this Act, and in the meantime any ratepayer within the district of the governing body may give notice in writing to the Local Government Board or Secretary of State objecting to such approval.”

The Renfrew Police and Improvement Act 1855 provides, section 17—“That if and when the general assessments, other than private and district assessments, authorised to be levied under the said recited Act and this Act, shall exceed in any year the sum of sixpence in the pound, but not otherwise, and if the burgh shall be at the same time possessed of any free income arising from the common good thereof, after deduction of the interest of any debt which the burgh may owe, and also the necessary annual outgoings of the burgh, there shall be annually contributed, in the events aforesaid, from the said free income, such a reasonable proportion towards the purposes of this and the said recited Act as the Town Council of the burgh, having due regard to the extinction of the capital of such debt, shall think just …”

The Town Council of Renfrew took steps to oppose a Bill introduced into the House of Commons, under the title of ‘ An Act to Amend the Constitution of the Trustees of the Clyde Navigation and for Other Purposes.’ The Town Council of Renfrew were trustees of Renfrew Harbour, and their opposition to the Bill was based upon the fact that under it the Burgh of Renfrew had no representative upon the Clyde Navigation Trust, and the object of their action was to obtain, if possible, some suitable representation.

The Town Council proposed to defray the expenses of the opposition of the Bill out of the common good of the burgh.

John M. Conn, 72 Fulbar Street, Renfrew, an inhabitant and ratepayer in the burgh, thereupon brought a petition in the Sheriff Court of Renfrew at Paisley against the Provost, Magistrates, and Councillors of the Royal Burgh of Renfrew, praying the Court “to interdict the defenders from paying out of or charging to, or proceeding to pay out of or charging to, the common good account of the Burgh of Renfrew, or from paying out of or charging to, or proceeding to pay out of or charging to, any of the assessments and rates imposed and collected by them, or other the public funds or rates under their control, in pursuance of resolutions alleged to have been passed at special private meetings of the Town Council of the Burgh of Renfrew, held within the Council Chambers on 6th and 12th April 1905, or one or other of them, to the effect that the Bill after mentioned should be opposed by them in Parliament unless due representation be granted to them on the public body known as the Trustees of the Clyde Navigation, any sum or sums for the purpose of being applied towards the costs and expenses attending the opposing by defenders in Parliament a Bill introduced therein entituled ‘ An Act to Amend the Constitution of the Trustees of the Clyde Navigation, and for Other Purposes,’ until the defenders shall have complied with the terms and provisions of (1) the Municipal Corporations (Borough Funds) Act 1872; (2) the Local Government (Scotland) Act 1889; and (3) the Burgh Police (Scotland) Act 1903, or obtained the approval of the Secretary for Scotland to said resolutions in terms of said Acts, and to grant interim interdict and to find the defenders liable in expenses.”

[The defenders had never proposed and did not propose to pay any part of the expenses out of rates or assessments. The only question, therefore, dealt with in the case came to be that connected with the “common good.”]

The pursuer averred inter alia—“(Cond. 10) It is a condition-precedent to the defenders charging any burgh funds under their control with the costs and expenses attending the opposition to any bill in Parliament, or to the prosecution of any proceedings necessary for the protection of the interests of the inhabitants of Renfrew, and in particular the Bill which the defenders are opposing as above condescended on, that they should comply with the Municipal Corporations (Burgh Funds) Act 1872, the Local Government (Scotland) Act 1889, and the Burgh Police (Scotland) Act 1903. This the defenders have failed to do, and it is illegal and ultra vires of the defenders to pay out of or charge, or proceed to pay out of or proceed to charge, as they intend to do, any burgh funds under their control with such costs and expenses until they have so complied with the provisions of said Acts, and in consequence of the defenders' illegal proceedings the pursuer is prevented from exercising his statutory rights, and will suffer material loss in consequence of increased taxation consequent on defenders' action, the general assessments being already 1s. 1½d Per£ (Cond. 11) The defenders are not entitled under these statutes or any other statute, nor at common law, to pay out of or charge to, or proceed to pay

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out of or proceed to charge to the common good account of said burgh, or any of the assessments and rates imposed and collected by them, or other the public funds or rates under their control, with the costs and expenses attending the opposition in Parliament to said Bill, except subject to the regulations contained in the statutes referred to in the immediately preceding article, and with the consent foresaid. No rights, powers, or privileges of the defenders are attacked or threatened by the promotion of the said Bill for reconstitution of the Clyde Trust, nor will any alteration in the constitution thereof affect Renfrew.…”

In their answers the defenders stated, inter alia—“(Ans. 9) Admitted that the defenders .… have resolved to oppose said Bill in the House of Commons, and to pay expenses incurred by them out of the common good of the burgh. … Explained that the defenders have adopted in connection with said resolution the same procedure which has been adopted by them and all other burghs administering a common good from time immemorial. In particular, in 1879, 1892, 1899, and 1902, the defenders or their predecessors in office have spent money out of the common good in connection with the promotion of Bills relating to the harbour of Renfrew, and that after adoption of the same procedure as has been adopted in the present case. The defenders are satisfied after the most careful consideration of the question that it is material to the general interests of the Burgh of Renfrew that they should be represented upon the Clyde Navigation Trust, and it is believed that this is the general opinion of the vast majority of the ratepayers. Such representation will, it is thought, most likely be secured by following the course resolved upon. The pursuer has no interests whatever to object to the action of the defenders.”

The pursuer stated, inter alia, the following pleas—“(1) The defenders not being entitled in terms of either the Municipal Corporations (Borough Funds) Act 1872, the Local Government (Scotland) Act 1889, the Burgh Police (Scotland) Act 1903, or any other Act, to pay out of or charge to or proceed to pay out of or charge to the common good account of said burgh, or any of the assessments and rates imposed and collected by them, or other the public funds or rates under their control, the costs and expenses or any part thereof of opposing the said Bill, except subject to the regulations contained in said statutes, and after having the approval of the Secretary for Scotland to any resolutions passed by them, and not having complied with or observed said regulations or obtained said approval, the pursuer is entitled to interdict as craved with expenses. (2) The defenders not being entitled to pay out of or charge to or proceed, to pay out of or charge to the common good account of said burgh, or any of the assessments and rates imposed and collected by them, or other the public funds or rates under their control, the costs and expenses or any part thereof of opposing the said Bill, the pursuer is entitled to interdict as craved.”

The defender stated, inter alia, the following plea—“(3) The action ought to be dismissed in respect that the pursuer has no title, separation no interest, to challenge the defenders' administration of the common good.”

On 23rd May 1905 the Sheriff-Substitute (Lyell) pronounced the following interlocutor:—… Finds that the pursuer has set forth no title or interest to sue the present action: Therefore dismisses the same…”

Note.—“In this action the pursuer asks that the Provost, Magistrates, and Town Councillors of Renfrew should be interdicted from charging to the common good of the burgh or from charging to the assessments to be levied by them within the burgh the expenses to be incurred by the defenders in opposing before Parliament a Bill entitled ‘An Act to amend the Constitution of the Trustees of the Clyde Navigation, and for Other Purposes,' until the defenders shall have complied with the provisions of certain Acts of Parliament enumerated in the prayer of the petition. The only title that the pursuer sets forth on record is that he is an inhabitant of the Burgh of Renfrew, and that he will be ‘injuriously affected’ by the actings of the defenders. The injury which he says he will suffer comes, shortly stated, to this, that the burgh rates will be raised, or if the payment is made out of the common good there will be less money capable of being applied from that fund to the reduction of the rates. In other words the pursuer appears as champion of the community, asking nothing for himself that he does not demand for the whole body of ratepayers in Renfrew. It is hardly matter for argument at this time of day that such an interest as that gives no title to a pursuer to bring this kind of action. I have had occasion to express my views at length upon this very subject in the case of Mackenzie v. The School Board, of Renfrew, being No. of the ordinary cases in this Court, to which views I still adhere, and I cannot do better than quote from the note of the Sheriff his opinion on the matter, with which opinion I entirely agree—‘The cases of Etving and Morrison, both decided in the House of Lords in 1839, are direct and, as I think, standing authorities for the proposition that at common law a ratepayer as such has no title to maintain an action against a public body for alleged illegal application of funds, but in order to qualify a title must distinctly allege personal patrimonial injury, and ask a judgment which will have the effect of redressing the injury done him. And one can readily see the propriety of such a rule for I can imagine nothing more calculated to paralyse the action of a public body, to which large powers of administration and management have been delegated, than to know that they are liable to be brought into Court at the instance of any ratepayer who takes it into his head that a particular resolution or act of management, though it in no way affects him patrimonially, is not strictly legal.’

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“ Ewing's case (15 8. 389, and 1 M'L. & R. 847) seems to me to be absolutely in point here. In that case the Glasgow Police Commissioners had spent police funds in opposing a water company's Bill, and the prayer there was to have them ordained ‘to repeat and pay back’ the money ‘into the funds of the said police establishment;’ and Lord Medwyn's opinion in 15 S., at p. 397, is instructive. He says—‘Parties may object to an illegal tax so far as regards their own portion of it. They cannot appear for the community or other ratepayers.’

“At common law, then, the pursuer has no title, having set forth no interest but that of a ratepayer, and cases such as Cowan, 10 Macph. 578, and Wakefield, 6 R. 259, have no application to a case such as this where the defenders are not a body of trustees entrusted with funds to be used for a particular specified purpose, but the Town Council of a Burgh clothed with large discretionary powers of management and administration. But it was argued that the effect of the provisions of sections 91 to 96 of the Town Council's Act of 1900 is to abrogate the law of Ewing and kindred cases. On the contrary, however, I think these provisions have nothing whatever to do with the point I am here considering. They simply provide for accounts being properly kept and audited, and allow a dissatisfied ratepayer a certain appeal to the Sheriff. That appeal was held by the Court in Heddle's case, 25 R. 801, to be competent to a ratepayer though he could aver no patrimonial interest. But it was so held merely because the statute founded on specially authorises such a course. No one suggested that an individual ratepayer has such a right at common law; and no such provision allowing an appeal in certain circumstances and under certain conditions can possibly be founded on as an authority for the bringing of an action for interdict or repayment by a person who, according to well-established law, has no title or interest to bring such an action. I need only further say that, even had the pursuer's title been good, I very much doubt the relevancy of his averments, and the competency, or at least the convenience, of trying such questions as he endeavours to raise in a summary process of interdict in the Sheriff Court.”

The pursuer appealed to the Sheriff. On 26th June 1905 the interim Sheriff (Lees) pronounced an interlocutor adhering to the interlocutor of the Sheriff-Substitute.

Note—“In dealing with a petition for interdict it is necessary to notice precisely what is asked and on what grounds. Here the petitioner asks the Court to interdict the Town Council of Renfrew from paying their expenses of opposing a recent Clyde Trust Bill out of any of the burgh assessments, or out of the burgh public funds, or out of the common good, till they comply with three specified statutes or obtain the approval of the Secretary of Scotland. Prom the terms of the condescendence and of the pleas-in-law it is plain that the pursuer means that the approval of the

Scotch Secretary must be got in addition and not as an alternative to compliance with the requirements of the three statutes.

“The need to bring the action is based on the averment that the defenders at a certain meeting resolved to pay the above-mentioned expenses out of the common good or the burgh rates. The defenders say they never proposed to pay these expenses out of the rates, and as the copy of their minutes, produced by the pursuer, confirms what the defenders state, interdict on that ground cannot be given, for a court does not interdict people from doing what has never been threatened to be done.

“Now, the three statutes I have mentioned are of importance to the pursuer's case in this way, that the latest of them—the Burgh Police Act of 1903—allows a town council to pay the expenses of opposing a Parliamentary Bill out of the rates, after complying with certain provisions which are a safeguard to the ratepayers against improper application of the rates, and which give any dissatisfied ratepayer an opportunity of being heard before approval so to apply the rates is given.

“If, therefore, the Town Council had been proposing to pay these expenses out of the rates, the pursuer would have been in a position to complain that the defenders were evading the opportunity given of protecting himself by the Act of 1903, taken in conjunction with the two earlier statutes embodied in it. But then the complete reply is that, as has been pointed out, the defenders are not proposing to pay the expenses out of the rates, and the combination of the three statutes does not deal with the common good. In taking their expenses out of the common good the defenders cannot be called on to comply with the provisions of three statutes, two of which at least have nothing to do with it.

“But the pursuer contends that at common law he has a right to challenge this interference with the common good, while on the other hand the defenders say that at common law they were acting within their rights. Perhaps the defenders are right, but I think it would be improper of me to express any opinion.

“The pursuer's contention has been discussed by the learned Sheriff-Substitute with considerable fulness, and as I entirely concur with the views he has expressed, little remains to be said. At common law the pursuer of an interdict must set forth both a title and an interest to sue. Now the title and interest that the pursuer here avers are that he is a ratepayer, and that unless the defenders are stopped he will be ‘injuriously affected, … and will suffer material loss in consequence of increased taxation.’ This is somewhat vague; but it was explained in argument that under the 17th section of the Renfrew Police Act of 1855 it is provided that whenever the police rates exceed sixpence in the pound a reasonable contribution may be made to them from the income of the common good. In this way the pursuer says that if the capital of the common good is lessened, the chance of a contribution towards the police rates

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is diminished, and thus the rates in some future year may, and probably will, be higher than they would otherwise have been.

“But this is a contention that has again and again been held as only supplying a ground of loss which is too remote and indirect to be able to be taken into consideration. The loss founded on must be direct patrimonial loss, which will appreciably affect the complainer. I do not think that the case of Russell v. Magistrates of Hamilton, 25 B. 350, is in conflict with these views. There the pursuers of the interdict had a locus standi to complain, as they were already objectors to the granting of the Provisional Order, as a step to which the inquiry of which they complained was about to be held.

“On the whole case I therefore think that the Sheriff-Substitute did right to refuse the interdict asked.

“I should perhaps allude to the plea of no jurisdiction which the defenders mentioned but did not venture to press. Considering the frequent occasions in which recent statutes direct the local courts to give protection to aggrieved ratepayers, it would seem anachronous to hold they were powerless in such a matter as this.”

The pursuer appealed to the Court of Session, and argued—The defenders' proposal to pay expenses out of the common good was illegal, they not having complied with the necessary statutory provisions contained in the Municipal Corporations (Borough Funds) Act 1872, and also the Local Government (Scotland) Act 1889 and the Burgh Police (Scotland) Act 1903. The Act of 1872 applied to Scotland—see section 11 (special provision that it shall not apply to Ireland or London)—Perth Water Commissioners v. M'Donald, June 17,1879, 6 R. 1050, at 1055 and 1059, 16 S.L.R. 619; Leith Dock Commissioners v. Magistrates of Leith, November 30, 1897, 25 B. 126, at 132 and 139, 35 S.L.R. 132. But even on the assumption that the defenders proposals transgressed nogeneral statutory rules, they at anyrate violated the Special Act applicable to the burgh of Renfrew, viz., the Renfrew Police Act 1855, sec. 17. Further and lastly, they were objectionable at common law inasmuch as the defenders, being trustees of the common good, could only legally apply it to trust purposes, which the present was not— Queen v. Mayor of Sheffield, L.R., 6 Q.B. 652. As to the pursuer's title to sue, an express title was conferred on him by the Act of 1872, sec. 5, and at common law his title was at least as good as those of the pursuers in Wakefield v. Commissioners of Supply of Renfrew, November 29, 1878, 6 R. 259, 16 S.L.R. 183, and Cowan & Mackenzie v. Law, March 8, 1872, 10 MacpB. 578, 9 S.L.R. 341.

Argued for the defenders—The pursuer's case on record wasfounded on threestatutes. Of these the Acts of 1903 and 1889 applied only to rates and had no bearing on the “common good,” and the Act of 1872 did not apply to Scotland— vide the terminology &c. of the Act and the opinions delivered in the House of Lords in Magistrates of Leith v. Leith Dock Commissioners, July 25, 1889, 1 F. (H.L.) 65, 36 S.L.R. 956, but reported on this point only in Constable's Provisional Orders, p. 197; vide also Fordyce v. Bridges, February 23, 1847, 6 Bell's Appeals, p. 1. Assuming, however, that the Act did apply to Scotland, it was an Act whose object was to enlarge and not to curtail the powers of magistrates, and could not therefore apply to the “common good,” which was not a “borough fund,” with which alone it dealt. At common law the pursuer had no title to sue—Erskine, i, 4, 23; Mollison v. Magistrates of Inverury, December 14,1820, F.C.; Ewing v. Glasgoiv Commissioners of Police, January 19, 1837, 15 S. 389, ajf. August 16,1839, M'L.andRob.847; Paterson, &c. v. Magistrates of St Andrews, &c., July 12,1881, 8 R. (H.L.) 117, at 122, 18 S.L.R. 728; Grahame v. Magistrates of Kirkcaldy, July 26, 1882, 9. R. (H.L.) 91, at 95, 19 S.L.R. 893; vide also Acts 1491, c. 36; 1593, c. 185. If he had a grievance a remedy was provided by the Town Councils (Scotland) Act 1900, secs. 91 to 99, especially 96.