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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cowdenbeath Gas Co., Ltd, and Another v. Provost of Cowdenbeath and Another [1915] ScotLR 301 (26 January 1915)
URL: http://www.bailii.org/scot/cases/ScotCS/1915/52SLR0301.html
Cite as: [1915] ScotLR 301, [1915] SLR 301
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SCOTTISH_SLR_Court_of_Session
Page: 301↓
Court of Session Inner House First Division.
[Lord Ordinary on the Bills.
v.
Facts:
The Burghs Gas Supply (Scotland) Act 1876, sections 4 and 5, directs that in certain circumstances a poll of the ratepayers in a burgh shall be taken “in the manner prescribed in regard to polls of householders taken with reference to the adoption of the General Police and Improvement (Scotland) Act 1862.” The last-mentioned Act is repealed by the Burgh Police (Scotland) Act 1892, which, however, makes no provision for taking a poll of the ratepayers. The Burgh Police (Scotland) Act 1893 gives the method of taking such a poll. Held that section 38 (1) of the Interpretation Act 1889 applied, and that the reference in the Burghs Gas Supply (Scotland) Act 1876 to the General Police and Improvement (Scotland) Act 1862 must be construed as a reference to the Burgh Police (Scotland) Acts 1892 and 1893.
The Burghs Gas Supply (Scotland) Act 1876 (39 and 40 Vict. cap. 49), sec. 5, enacts—“… And if before the expiration of such month [ i.e., from date of second meeting of Council, when resolution to adopt the Act is approved] a remonstrance in writing by twenty or more ratepayers against carrying into effect such resolution or any part thereof be lodged with the town clerk,… such resolution shall not be carried into effect unless confirmed by a majority of the ratepayers qualified and voting at a poll to be taken, and upon such remonstrance being lodged as aforesaid the chief or senior magistrate of such burgh shall be bound to direct a poll to be taken in the manner prescribed in regard to polls of householders taken with reference to the adoption of the General Police and Improvement (Scotland) Act 1862.”
The Interpretation Act 1889 (52 and 53 Vict. cap. 63), section 38 (1), enacts—“Where this Act or any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted.”
Page: 302↓
The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 5 (2), enacts—“In the burghs to which this Act applies, this Act … shall supersede and come in the place of the general or local Police Acts.…” Sec. 6—“The General Police Acts enumerated and set forth in Schedule I of this Act.… are hereby repealed.” Schedule I includes the General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. cap. 101), and the General Police and Improvement (Scotland) Act 1862 Amendment Act 1868 (31 and 32 Vict. cap. 102).
The Burgh Police (Scotland) Act 1893 (56 and 57 Vict. cap. 25) enacts, sec. 1—“This Act … shall be read and construed along with the Burgh Police (Scotland) Act 1892.” Section 2 contains the provisions as to the mode of resolving to adopt the Act.
On 20th January 1915 the Cowdenbeath Gas Company, Limited, and James B. Scott, a ratepayer in the burgh, complainers, presented a note of suspension and interdict against the Provost of the burgh, respondent, to prohibit him from taking the poll after mentioned “in the manner and with the qualification prescribed in regard to polls of householders taken with reference to the adoption of the Burgh Police (Scotland) Act 1892, as amended by the Burgh Police (Scotland) Act 1893,” and against the Sheriff of the County of Fife, to prohibit him “from authorising any resolution confirmed by the ratepayers at such a poll to be registered in the Sheriff Court, books of the County of Fife.”
The Town Council of Cowdenbeath, at a meeting specially called for the purpose held on 4th June 1914, unanimously passed the following resolutions—“(1) That the Burghs Gas Supply (Scotland) Act 1876 be adopted in and applied to the burgh of Cowdenbeath, and (2) that Thursday the 19th day of November 1914 be now appointed as the date for holding a second special meeting to resume consideration of the resolution to adopt the said Act in and apply it to the burgh; and that the said second special meeting be held on that day at seven o'clock afternoon in the Council Chamber, Corporation Buildings, Cowdenbeath.” A copy of the minute of the Town Council containing these resolutions was published on 26th September 1914 in the Cowdenbeath Mail newspaper of that date. The Cowdenbeath Mail was at that date the only newspaper published in the burgh of Cowdenbeath. At a second special meeting of the Town Council held in accordance with the second resolution on 19th November 1914, the said resolution that the Burghs Gas Supply (Scotland) Act 1876 be adopted in and applied to the burgh of Cowdenbeath was unanimously approved of and confirmed by the Town Council. During the month which followed said meeting on 19th November 1914, at which said resolution was approved of and confirmed, the said resolution to adopt said Act as approved of was advertised in the Dunfermline Journal newspaper on 21st and 28th November and 5th, 12th, and 19th December 1914, being once in each week during the said month. The said Cowdenbeath Mail newspaper had ceased to be published before 19th November 1914, and there was during the month following that date no newspaper published in the burgh of Cowdenbeath. The said Dunfermline Journal newspaper is a newspaper circulating in the county of Fife, in which the said burgh is situated. Public notice of the approval of the said resolution to adopt said Act was also given by means of placards posted in public places within the burgh. On 18th December 1914 a remonstrance signed by twenty-two ratepayers of Cowdenbeath was lodged with the town clerk of Cowdenbeath. In consequence of this remonstrance the Provost of the burgh directed a poll of ratepayers to be taken in terms of section 5 of the Burghs Gas Supply (Scotland) Act 1876 on Thursday, 21st January 1915. The said section directs that the poll shall be taken “in the manner prescribed in regard to polls of householders taken with reference to the adoption of the General Police and Improvement (Scotland) Act 1862.” The Provost did not take the poll in the said manner, but in the manner prescribed in regard to polls of householders taken with reference to the adoption of the Burgh Police (Scotland) Act 1892, as amended by the Burgh Police (Scotland) Act 1893. The manner of taking the poll and the persons qualified to vote under the said Acts of 1892 and 1893 are entirely different from those provided for by the Act of 1862. At the said poll 629 ratepayers voted in favour of the adoption of the Act, and 74 ratepayers voted against adoption. The Provost accordingly declared that the resolution to adopt the Act had been confirmed by the ratepayers by a majority of 555 votes. The Town Council of Cowdenbeath thereafter applied, in accordance with section 5 of the Burghs Gas Supply (Scotland) Act, 1876, for the authority of the Sheriff for the registration in the Sheriff Court books of the county of Fife of the said resolution “that the Burghs Gas Supply (Scotland) Act 1876 be adopted in and applied to the burgh of Cowdenbeath.”
On 20th January 1915 the Lord Ordinary ( Anderson) in the Bill Chamber allowed answers and refused interim interdict.
The complainers reclaimed.
At the hearing in the Inner House on 26th January 1915 the note so far as directed against the Sheriff of Fife was of consent of parties refused.
The reclaimers argued—The Burghs Gas Supply (Scotland) Act 1876 (39 and 40 Vict. cap. 49) conferred on the Provost the power to take a poll of the ratepayers, and directed him to take it in the manner prescribed in the General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. cap. 49). This importation by reference of the provisions of the General Police Act of 1862 was equivalent to their enactment in the Act of 1876. The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 58) repealed the General Police Act 1862, but that was only for police purposes. The right to take the poll given by the Act of 1876 was unaltered, and the method of taking the poll enacted by reference was also unaltered.
Page: 303↓
This was clear from the fact that the Burgh Police Act 1892 contained no provisions for taking a poll of ratepayers. The Interpretation Act 1889 (52 and 53 Vict. cap. 63), sec. 38 (1), did not apply. It contained the phrase “unless the contrary intention appears,” and the Burgh Police Act 1892 did not intend to repeal the Gas Supply Act 1876 as to the taking of polls. The method of taking a poll for police purposes was found in the Burgh Police (Scotland) Act 1893 (56 and 57 Vict. cap. 25), which (section 1) was to be read along with but not as part of the Burgh Police Act 1892. There was therefore in the Burgh Police Acts of 1892 and 1893 no repeal and re enactment of the provisions of the General Police Act of 1862 as to the method of taking a poll of ratepayers— Magistrates of Cumnock v. Murdoch, 1910 S.C. 571, 47 S.L.R. 460. The Burgh Police Act 1893 was a new enactment. The respondents argued—The Gas Supply Act 1876 did not enact a stereotyped constituency and method of consulting it. The constituency of the General Police Act 1862 was modified by the Gas Supply Act 1876 itself (section 3). The ratepayers entitled to vote were not those of the General Police Act 1862, but those of the General Police Act 1862 as amended by the General Police (Scotland) Act 1862 Amendment Act 1868 (31 and 32 Vict. cap. 102). This showed that the reference was to a progressive code, i.e., to the methods recognised by the Legislature as appropriate for police purposes from time to time. The Burgh Police Act 1892, sec. 5 (2), superseded all earlier Police Acts. There was a lacuna in the Burgh Police Act 1892, but it was filled up by the Burgh Police Act 1893, and in these Acts read together there was found the method of taking the poll. The Interpretation Act 1889, sec. 38 (1), therefore applied, and the Gas Supply Act 1876, sec. 5, must be construed as referring to the Burgh Police Acts 1892 and 1893.
The respondent proposes to invoke the aid of a certain statutory procedure in order to bring the Burghs Gas Supply Act of 1876 into operation in the burgh of Cowdenbeath, and the questions which we are asked are—Who are to vote, and how, if that procedure is adopted? I answer without hesitation that the persons to vote are those who are defined as householders in the Statute of 1892, and that the method which is to be followed in taking and recording their votes is that prescribed in the Statute of 1893.
The Burghs Gas Supply Act itself prescribes no procedure, but invites those who ask its aid when in search of ratepayers to find them among the householders as defined by the Statute of 1862, and when they are in doubt as to how these ratepayers are to vote to follow the procedure which is prescribed by the Statute of 1862.
Now in 1892, as your Lordships are aware, the Statute of 1862 was repealed, and with it of course the procedure therein prescribed for taking a poll. No other procedure was substituted for the repealed procedure by the Statute of 1892, but that defect—for defect it certainly was—was remedied by the Statute of 1893, which by its 2nd section repealed certain sections enacted by the Statute of 1892, and directed that the enactments of the Statute of 1893 should be substituted therefor. Further, by the 2nd section it expressly stated that the two Acts were to be read and construed together. In the absence of any indication to the contrary, and in the absence of any discrepancy being revealed, my opinion is that these two Acts are virtually one Act of Parliament, and if that be so, it cannot, I think, be disputed that the Interpretation Act applies in terms, for it expressly sets out “that where any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provision of a former Act, reference in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as reference to provisions so re enacted.”
That appears to me to substitute the constituency and the procedure of the Statutes of 1892 and 1893 for what Mr Macmillan has characterised as the archaic procedure and also the archaic constituency prescribed by the Statutes of 1862 and 1868.
The respondent therefore appears to me to have adopted the correct statutory procedure here, and I move your Lordships therefore to refuse the interdict sought.
On the other point there is more difficulty, because of the fact that the repeal is effected by one Act and the re-enactment by another Act—the former repealing without re-enacting, the latter re-enacting without repealing. But when one looks at the 38th section one finds that it says—“Where any Act passed after the commencement of this Act repeals and re-enacts, with or without modification, any provision of a former Act, reference in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as reference to provisions so re-enacted.” Now I do not think it necessary in applying this section to refer to the well-known rule that the singular may include the plural, and that therefore the section may be read as if it opened with the words “where any Act or Acts passed,” &c. For it is only necessary to ask, What is the Act in question? The Act is the Act of 1892. But then what is the Act of 1892. The Act of 1892 is the Act as passed in that year, with a new set of provisions substituted for certain of its original provisions.
Page: 304↓
The Court refused the note.
Counsel for the Complainers and Reclaimers— Constable, K.C.— Gentles. Agents— J. Miller Thomson & Company, W.S.
Counsel for the Respondent, the Sheriff of Fife—Solicitor-General ( Morison, K.C.)— Morton, A.-D. Agent— Sir William S. Haldane, Crown Agent.
Counsel for the Respondent, the Provost of Cowdenbeath— Macmillan, K.C.— W. T. Watson. Agents— Morton, Smart, Macdonald, & Prosser, W.S.