Scottish Court of Session Decisions

The Burial Grounds (Scotland) Act 1855 (18 and 19 Vict. cap. 68), section 10, enacts—“Whenever any burial ground shall have been closed by Order in Council, the parochial board shall forthwith proceed to provide a suitable and convenient burial ground for the parish, and to make arrangements for facilitating interments therein; and in the event of a suitable burial ground not being provided by the parochial board within six months after such order or requisition as aforesaid, it shall be lawful for such board, or for any ten or more persons assessed for the relief of the poor in the parish, or any two or more members of the parochial board, to apply by summary petition to the Sheriff to have a suitable portion of land designated for the purpose of a burial ground; and the Sheriff shall examine such witnesses and make such inquiry as he shall think proper, and shall keep a note of such evidence as may be adduced, and if he thinks fit shall thereupon proceed to designate and set apart such portion as he may deem necessary of any lands in such parish suitable for the purpose, not being part of any policy, pleasure ground, or garden attached to any dwelling-house; provided always that due intimation shall have been given of not less than ten days to the owner of such lands that he may be heard for his interest before such designation is actually made, subject always to an appeal to any of the Lords Ordinary of the Court of Session, whose decision shall be final, such appeal always being presented within fourteen days of the date of the Sheriff's judgment. …”

In May 1906 the Parish Council of Ballingry, as coming in place of the old parochial board, presented a petition to the Sheriff of Fife and Kinross, under the Burial Grounds (Scotland) Act 1855, praying him to designate and set apart a certain portion of the glebe lands of the parish of Ballingry for the purposes of a burying ground for the parish, and to find any person offering objections liable in expenses. The land proposed to be designated was bounded on the north and north-west by the lands of W. J. N. Liddall of Navitie, along which it extended, following the centre line of a burn or ditch, 517 feet 6 inches. The Sheriff-Substitute ( Hay Shennan) having considered the petition appointed intimation to be made by advertisement calling upon any party interested, who might desire to oppose the application, to lodge in the hands of the Clerk of Court at Kirkcaldy a notice of appearance within ten days. Liddall entered appearance and lodged objections on the ground, inter alia, that the whole drainage of the land proposed to be designated was into the burn flowing between the said land and his estate of Navitie; that the burn flowed

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right through his estate, watering all the parks; and that the burn would be rendered unsuitable for the primary purposes for which it was used if the drainage of the burying ground were allowed to run into it. On 28th July 1906 the Sheriff-Substitute, having in terms of section 10 of the Burial Grounds (Scotland) Act 1855 examined witnesses and made inquiry, pronounced an interlocutor repelling the objections, designating the ground, and finding the objector (Liddall) liable in the expenses caused by his appearance and opposition. The expenses having thereafter been taxed at £48 and decerned for on 11th March 1907, a charge on the decree was given.

Liddall presented a note of suspension, in which he pleaded—“(1) The said decree for expenses having been ultra vires of the Sheriff-Substitute, the charge proceeding thereon ought to be suspended. (2) The Sheriff-Substitute having acted in the said inquiry in an administrative capacity, and having had no jurisdiction to pronounce the said decree for expenses, the complainer is entitled to suspension as craved.”

On 31st October 1907 the Lord Ordinary ( Johnston) suspended the charge and whole grounds and warrants thereof simpliciter, with expenses.

Opinion.—“Mr Liddall of Navitie, under this suspension, complains that he has been charged, at the instance of the Parish Council of Ballingry, on an extract decree for expenses pronounced by the Sheriff-Substitute of Fife, which the latter had no power to grant.

The circumstances are these:—The Parish Council of Ballingry, as coming in place of the old Parochial Board, in May 1906 presented a petition to the Sheriff of Fife, by virtue of the Burial Grounds (Scotland) Act 1855, praying him to designate 4 1 3 acres of the glebe lands of Ballingry for the purposes of a burial ground for the parish. The prayer of this petition concluded by craving the Sheriff to find any person offering objections to the petition liable in expenses. I am of opinion that neither were the Parish Council warranted in concluding for expenses, nor had the Sheriff-Substitute power to award them, under said petition. That he should have even done so on the merits, had he the power, is unintelligible, his whole reasoning leading to an opposite conclusion, and proving that Mr Liddall's opposition was not only necessary but advantageous in the public interest as well as in his own, and amply justified by the result. But the question before me does not depend on the merits, but on the competency of the Sheriff's award.

The Burial Grounds (Scotland) Act 1855 provides for the closing of burial grounds which have become dangerous to the public health or offensive to public decency, and for the provision of burial grounds, whether existing burial grounds have been so closed or not. In relation to this matter, certain authority is given to the Sheriff, subject to an appeal to a Lord Ordinary of the Court of Session; but I think that the very subject-matter of the authority committed to the Sheriff raises the prima facie presumption that his action will be ministerial, and not judicial. This is amply confirmed by the provisions of the statute when these are examined in detail.

The Sheriff is first called in by section 3, when it is proposed to put the statute into operation, where a parish is partly burghal and partly landward, to determine whether, for the purposes of the Act, such parish is to be deemed burghal or landward. And where application is made to him for that purpose, he is to hear ‘any parties having interest.’

In the next place, by sections 4 to 8, the Sheriff may be applied to not merely by the parochial board, but by any ten persons assessed for relief of the poor, or any two householders residing within 100 yards of an existing or proposed burial ground, to determine whether such burial ground is or would be dangerous to public health or offensive to public decency. The provisions for the procedure on such application require the Sheriff ‘to permit all parties whom he shall judge to have an interest, to appear and be heard in such manner as he shall deem fitting.’ He is to make inquiry; and if satisfied of the truth of the allegations of the applicants, he is to pronounce an interlocutor to such effect, and transmit a copy to the Home Secretary, whereupon an Order in Council is to be pronounced, closing the existing or prohibiting the opening of the proposed burial ground. In this branch of the statute there is no provision for appeal, but there is a prohibition of the renewal of the application to the Sheriff, except with the concurrence of the procurator-fiscal, till after the lapse of five years. In both these provisions it is quite clear that the Sheriff is acting ministerially, and this is accentuated by the clause to which I have last referred; to enable him to deal properly with such application it is manifestly necessary and to the public advantage that all having interest should be heard.

Then there follow in sections 9 to 14 enactments for the provision of burial grounds for parishes, and I think also of additional ground to be added to an existing burial ground, and that whether the burial ground of the parish has been ordered to be closed or not. So far as I am concerned, the important sections are 10 and 13. Section 10 provides for the parochial board, any ten ratepayers, or any two members of the board, applying by summary petition to the Sheriff to have a suitable portion of land designated. And after examining witnesses, of whose evidence he shall keep a note, and making inquiry, the Sheriff is to proceed to designate and set apart such portion as he may deem necessary ‘of any lands in such parish suitable for the purpose,’ provided that due intimation is first given to the owner of such lands that he may be heard for his interest before such designation is actually made. Then section 13 incorporates the Lands Clauses Act 1845, which, in effect, makes the Sheriff's designation of a parcel of land for the purpose of a burial ground

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the equivalent of a Private Act or Provisional Order, and confers compulsory powers on the parochial board, as promoters of the undertaking, to acquire the land designated by the Sheriff. It is somewhat strange that the 10th section should only provide expressly for the owner of such lands being heard for his interest, but I think that the Sheriff-Substitute, having regard to the provisions of the Lands Clauses Act, did right in giving a wide interpretation to the word ‘owner,’ and in holding it to include anyone who, as Mr Liddall, might be injuriously affected, in respect, for instance, that the land proposed to be taken marched with his estate, and was only separated therefrom by a burn, in the water of which he had the rights of a riparian proprietor, and which water was liable to be polluted by drainage from the proposed cemetery. I cannot understand the reasoning of the Sheriff-Substitute's note, in which he indicates that he was prepared to be satisfied of the suitability of the ground, chiefly because it was the only ground possible, without satisfying himself that either there would be no injurious affection of the burn by pollution, or that proper precautions were to be taken to prevent it, and which led him to proceed to designate the land, with a mere warning that ‘having in view Mr Bennett's (that is, Mr Liddall's adviser's) cogent criticism of the tentative scheme, they (the Parochial Board) must see that an efficient scheme is provided.’ It is manifest that but for Mr Liddall's appearance, whether statutorily entitled or not, the drainage question would never have been considered, and must have subsequently been raised between him and the Parochial Board in the form of an action for nuisance.

In this third class of applications to the Sheriff an appeal is given to a Lord Ordinary of the Court of Session, but, notwithstanding, I cannot hold the proceeding, either before the Sheriff or before the Lord Ordinary, to be anything but ministerial. Of this I think it is sufficiently conclusive that by section 13 is committed to the Sheriff the functions of a parliamentary committee on a private bill, and to the Lord Ordinary the functions of the House on report.

As the statute makes no provision as to expenses, except by saying (section 26) that the expenses incurred by the parochial board in carrying the Act into execution, so far as not covered by burial fees, are to be raised by assessment, the complainer here maintains that the Sheriff-Substitute in his final deliverance on the Board's application, had no power to award expenses against him; while the respondents maintain that he was entitled to do so by virtue of his common law powers. I am of opinion that he had no such common law powers, and that having no statutory power he was acting ultra vires in awarding expenses against Mr Liddall.

That he was acting ministerially I think cannot be doubted, and I refer to Binning v. Easton & Sons, 8 Fr. 407, and to Hughes v. Thistle Chemical Company, 1907, S.C. 607.

The Ecclesiastical Buildings and Glebes (Scotland) Act 1868 is an Act of somewhat similar character. Though it provides for appeal to the Sheriff, and ultimately to the Lord Ordinary in Teind Causes, from proceedings in the Church Courts, and there is therefore rather more to be said for such an appeal being of a judicial character than for one under the statute in question, yet by section 15 of the Ecclesiastical Buildings Act it was thought necessary to give express power to the Sheriff and Lord Ordinary to award expenses.

Two categories of cases were referred to as authorities on this subject. First, those in which summary complaints of a merely quasi criminal character were concerned, as in Ledgerwood v. M'Kenna, 7 Macph. 261, where opinions were expressed that Justices without any express power might competently award expenses in a complaint under that Act; but I think it is sufficient to say of that case that the Justices were assumed to be acting judicially. Then in the analogous case of Nimmo v. Clark & Wilson, 10 Macph. 477, being an appeal to the Court of Session from a conviction by the Sheriff for contravention of the Mines Regulation Act 1860, the question was raised whether the Court of Session, to whom the appeal was taken, could award expenses even in the appeal, there being no provision for an award of expenses in the original complaint. There was no suggestion that the Sheriff could have awarded expenses in the Court below; and the Court held that, on the analogy of the practice in the Justiciary Court in appeals from convictions of a criminal character, they were entitled to award expenses in similar appeals from convictions of a civil character.

The other category of cases to which I was referred was that in which the Sheriff acts, as in the Burgh Police Act 1892, in the matter of extension of burgh boundaries, definition of drainage and water areas, &c., and it was pointed out that in County Council of Dumbarton v. Commissioners of Clydebank, 4 Fr. 111, the Court, on a statutory appeal from the Sheriff, had assumed the power of awarding expenses, both before them and in the Court below, of a successful opposition to the Magistrates' application, although the statute made no provision for expenses. I have some difficulty in understanding that decision; and looking to what Lord M'Laren says, I cannot regard it as a considered judgment upon the point, and can only explain it to my own mind by assuming that in the peculiar circumstances of the case, and to mark their sense of the improper and harassing conduct of the local commissioners, the Court used their nobile officium to do that which neither they nor the Sheriff had power under the statute or at common law to do. But this does not infer that the Sheriff had any power at his own hand to do the same; and in support of my view I refer to White v. Magistrates of Rutherglen, 24 R. 447.

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I therefore propose to suspend the charge, with expenses.”

The respondents reclaimed, and argued—The Sheriff in deciding the question in which the expenses had been awarded was acting in a judicial and not in an administrative capacity. The best criterion in such a question was the existence of a right of appeal— Binning v. Easton & Sons, January 18, 1906, 8 F. 407, 43 S.L.R. 312; Magistrates of Portobello v. Magistrates of Edinburgh, November 9, 1882, 10 R. 130, 20 S.L.R. 92. There was a right of appeal here, and the limitation on it was merely in order to secure dispatch. Further, where a statute invoked the Sheriff for the purpose of carrying out its provisions without prescribing any special form of process, the presumption was that it was the ordinary jurisdiction of the Sheriff Court that was so invoked— Magistrates of Portobello v. Magistrates of Edinburgh. cit. sup.; Leitch v. Scottish Legal Burial Society, October 21, 1870, 9 Macph. 40, 8 S.L.R. 8; Ledgerwood v. M'Kenna, December 18, 1868, 7 Macph. 261, 6 S.L.R. 203. The procedure enjoined by the statute in this case was indistinguishable from the ordinary judicial procedure before the Sheriff, for the Sheriff was directed by section 10 to examine witnesses and to keep a note of the evidence, while the same section spoke of the Sheriff's “judgment.” But even if the proceedings before the Sheriff contemplated by the Act were ministerial, they became judicial on the intervention and opposition of the complainer. If the Sheriff had acted in a purely ministerial capacity, the complainer would have had no right to appear, because the Act did not provide for the appearance of anyone in the proceedings under it except the owner of the lands proposed to be taken for the burial ground. Further, the complainer had appeared not in the public interest but for his own personal interests, which might have been protected by an action as proprietor of the burn. If the functions exercised by the Sheriff were judicial and not administrative, even though all the ordinary procedure of the Sheriff Court was not applicable, then an award of expenses was competent in virtue of the Sheriff's inherent power to deal with expenses. A justice of the peace had an inherent power to award expenses— Ledgerwood v. M'Kenna, cit. sup.—and an arbiter could competently dispose of expenses, even though no such power was conferred by the submission— Robertson v. Brown, December 6, 1836, 15 S. 199; Ferrier v. Alison, January 28, 1843, 5 D. 456. That inherent power of awarding expenses extended to all cases where the Sheriff was sitting in a judicial capacity, even though he were exercising a discretion in virtue of a statutory jurisdiction— County Council of Dumbarton v. Clydebank Commissioners, November 14, 1901, 4 F. 111, 39 S.L.R. 57; White v. Magistrates of Rutherglen, January 28, 1897, 24 R. 446, 34 S.L.R. 387; County Council of Lanarkshire v. Corporation of Motherwell, July 7, 1904, 6 F. 962, 41 S.L.R. 733; Cunningham v. M'Gregor and Others, July 7, 1904, 6 F. 955, 41 S.L.R. 727.

Argued for the complainer (respondent)—The Sheriff was not given any express power by the statute to award expenses, and he had no common law power to award them if he was acting in an administrative capacity. A sheriff in any statutory procedure was acting in an administrative and not in a judicial capacity, unless it could be shown that the statute “intended to invoke the jurisdiction of the Sheriff Court with all its ordinary methods of procedure, including the right of review by the Court, of Session”—per Lord Adam in Main v. Lanarkshire and Dumbartonshire Railway Co., December 19, 1893, 21 R. 323. 31 S.L.R. 239. The Burial Grounds Act 1855 could not be said to invoke the Sheriff Court “with all its ordinary procedure,” &c., because the procedure and the mode of appeal were specially prescribed. The Sheriff by section 10 could inform his mind in any way he chose, and an appeal from his decision was to a Lord Ordinary. In applications under this Act the Sheriff was really exercising legislative functions, because the question he was called on to decide was whether public expediency would justify an encroachment on private rights. He was exercising delegated powers from Parliament, and could not award expenses unless the power to do so was expressly delegated. In other Acts providing for the delegation by Parliament of the exercise of its functions express provision was made for expenses, e.g., the Private Legislation Procedure (Scotland) Act 1899 (62 and 63 Vict. c. 47), the Public Health (Scotland) Act 1897 (60 and 61 Vict. c. 38), the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), the Roads and Bridges (Scotland) Act 1878 (41 and 42 Vict. c. 51), the Ecclesiastical Buildings and Glebes (Scotland) Act 1868 (31 and 32 Vict. c. 96), Burgh Voters (Scotland) Act 1856 (19 and 20 Vict. c. 58). If no power to award expenses was expressly given the presumption was that it did not exist. In the cases relied on by the reclaimers there was nothing to support the view that the Sheriff here had power to award expenses except a suggestion in Ledgerwood v. M'Kenna, cit. sup., which was merely obiter. In the case of White v. Magistrates of Rutherglen, cit sup., Lord Young rested the refusal to award expenses on the ground that the proceedings were not a litigation, while in Cunningham v. M'Gregor and Others and the County Council of Lanark v. Corporation of Motherwell, cit. sup., the Court awarded no expenses in the Sheriff Court. In the County Council of Dumbarton v. Clydebank Commissioners, cit. sup., expenses in the Sheriff Court were awarded on the ground of oppression. In any event, though the Court of Session had power to award expenses under the Burgh Police Acts that was no authority for holding that the Sheriff could at his own hand deal with the expenses in statutory proceedings before him.

At advising—

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