Scottish Court of Session Decisions

Lord President (Clyde).—This appeal arises out of a small debt action, which raises a question of importance from the point of view of police administration altogether out of proportion to the small sum which is at stake.

It appears that the defenders are owners of property in Buckie which immediately adjoins one of the public streets of the burgh, and which at the locus in question consists of a steep, natural declivity falling from the level of the roadway towards the level of the sea-beach. Proceeding upon the terms of section 190 of the Burgh Police (Scotland) Act, 1892, the Burgh Authorities seek to recover from the defenders the costs incurred by them in erecting a fence alongside the road for the purpose of protecting it, and any traffic upon it, from the natural declivity to which I have referred. The decision of the case depends upon the construction of that section.

The section is one of a fasciculus of sections in the Burgh Police Act grouped together under the heading “Precautions during the Construction or Repair of Buildings and Streets, and in regard to Old and Ruinous Tenements.” The section empowers the Burgh Authority to protect or enclose “any building, hoarding, or hole, or any other place, in or near any street.” which is, “in the opinion of the burgh surveyor, for want of sufficient repair, protection, or enclosure, dangerous to passengers along such street” The question is whether the steep, natural declivity above referred to is a “place in or near any street” within the meaning of the section.

It is maintained on behalf of the burgh that the construction of section 190, and of the words “any other place” occurring therein, is not affected by considerations arising out of the context of the section in the statute, and, in particular, by the circumstance that it is grouped with others under the fasciculus bearing the heading above quoted. The defenders, on the other hand, maintain that the problem of construction should be solved by reference to the statutory context, and its bearing on the scope and meaning of the words “any other place” occurring in the section.

The question thus raised is of a kind which is by no means new, and we have been favoured with a copious citation of authorities upon it. It seems to me that, as the result of those authorities, two propositions may be regarded as well settled.

The first is that in construing a statutory enactment—assuming that there is anything in it which fairly raises a question of doubtful construction—the enactment must be interpreted in the light of the context in which it is found; and that, if the Act in which the enactment occurs is divided into parts or compartments with separate headings, the particular enactment under construction must be considered in the light thrown upon it by the description of the heading under which it is placed. The same principle would apply to the preamble, if there was one, but preambles are now done away with in public Acts. I think the same principle would also apply to the title (though not perhaps to what is known as the “short title”) of a modern Act of Parliament. The reasons against any argument a rubro ad nigrum in the case of the Acts of the Scots Parliament (see Ersk. Inst. I. i. 49)—in which the rubrum consisted, not of the titles of the several sections, but of the title of the Act itself—still applies to the sectional rubrics or side-notes of a modern Act, but has no application to the title of such an Act, whichis not only considered and adjudicated on by Parliament, but defines, according to parliamentary practice, the limits within which amendments are competent while the Act is at the Bill stage. The proposition above formulated comes to no more than this, that a statute must, like any other continuous document, be read as a whole—optimus statuti interpres statutum ipsum.

The second proposition, which seems to me to be established by those authorities is that, if one of the enacting sections of a statute contains something which is unambiguous in its own terms and raises no question of doubtful construction, it must be given effect to notwithstanding that it goes beyond its context and beyond the scope of the heading of the part, or fasciculus, in which it is placed, and notwithstanding even that it goes beyond the scope of the preamble (if there is one), and possibly—though I am not to be taken as indicating any opinion to that effect—notwithstanding that it goes beyond the scope of the title of the Act.

Which of these two propositions applies to the question in the present case? It certainly cannot be said that section 190 is so unambiguous in its terms as not to raise a question of doubtful construction. The argument for the burgh was that the words “any other place” were so clear and unambiguous as to leave no doubt about their meaning, and the meaning attributed to them was the same as if they had read “any place whatsoever in or near any street.” It is easy to make the meaning of a phrase unambiguous by isolating it from its context and slightly altering its terms. But I do not think it is possible to say that the meaning of the words, in the collocation in which they actually occur, is not open to construction. If the view contended for on behalf of the burgh is right, all the words that precede the expression “any other place” would be reduced to useless surplusage. If I am right so far, then the question in the present case falls within the first of the two propositions formulated above, and we must search for light with regard to the true meaning of the words “any other place” from the sources to which the first of the two propositions points. That is to say, we must consider the place of this section in the statute, and we must look at the heading of the fasciculus in which the section occurs.

If the immediately preceding sections be glanced at, it will be seen that they deal with dangers (whether to property or to persons) arising from operations on streets and sewers; from the construction, taking down, repair, or alteration of buildings; from the deposit of materials on, or excavations in, streets; and that penalties are attached to any contravention of the regulations laid down with regard to these matters. Section 187 deals with buildings and hoardings; section 188 with excavations or “holes” in streets. Section 186 deals with such places as a “common passage” or “thoroughfare” rendered unsafe by street operations; and section 188 with streets used as places for depositing materials. It is plain, I think, that the buildings, hoardings, and holes with which section 190 deals must be buildings and hoardings and holes similar to those with which the preceding sections deal. If so, then why should not the places in or near a street, referred to in section 190, be in like manner similar to those dealt with in the precedingsections—common passages, thoroughfares, and places in or near streets used for depositing materials and the like—places, in short, which are the sites (or in immediate proximity to the sites) of some part of a street or of building operations?

When one looks at the heading of the fasciculus of which section 190 forms part, any vestige of doubt is removed. The fasciculus is stamped as dealing with precautions of a certain kind, viz., those that are appropriate to be taken during the construction or repair of buildings and streets and in regard to old and ruinous tenements which have to be removed, either under compulsion or by the willing act of their owners. Such precautions are of a totally different class from those which may be appropriate to the case in which a road or street happens to run near the edge of a natural declivity, as is the case here.

The conclusion thus arrived at is the same as that at which the Sheriff-principal arrived, possibly on somewhat narrower grounds than those upon which I think a decision may be safely placed, but upon grounds which are substantially the same.

The present appeal therefore fails.

Lord Sands.—I am of the same opinion. I am not prepared to go so far as the learned Sheriff has gone, or to lay down so absolutely that the provisions of a section of a statute which has a heading must be held to be modified by the heading and confined to the subject-matter therein set forth. There are, no doubt, circumstances in which this rule will not be applied. On the other hand, it has been suggested that it is only where there is an ambiguity in a section that the heading can be referred to. If this suggestion means that there must be a patent ambiguity when the section is read according to the ordinary use of language, I think that it goes too far in the other direction. The provision might be so irrelevant or even absurd, if given its full literal meaning, that it would be necessary and natural to go to the heading to see if there is any explanation, and if it is found that the heading covers only matters of a totally different character, then I think that the ambiguity, which was not apparent on a literal construction of the language, would be disclosed and would justify a reading of the section by reference to the heading.

In the present case, apart from the heading, there is a peculiar collocation of words: “Any building, hoarding, or hole, or any other place.” Now I think that that peculiar collocation puts us on our inquiry and justifies us in going back to the heading “Precautions during the Construction or Repair of Buildings and Streets and in regard to Old and Ruinous Tenements.” I think that this gives the key, and it shows how “building, hoarding, or hole” come to be connected together. That impression is confirmed when I look at the neighbouring sections and find that these three classes of subject—“buildings, hoardings, and holes”—are spoken of in relation to the construction or repair of buildings and in regard to old and ruinous tenements. I think that this shows the idea which links together the three things—“buildings, hoardings, and holes.” That being so, we must, I think, in accordance with the principles of statutory construction, read the words “or anyother place” as meaning, not any other spot of ground in the town, but any other place where there is something of a similar character caused by operations or defects of the nature indicated. Taking that view, I do not think we can hold that the word “place” here includes a natural object which from its situation is a source of danger to people using the road. I accordingly concur in the result at which your Lordship has arrived.

Lord Blackburn.—I concur in thinking that the use of the words “any other place” in section 190 of the Act under consideration, appearing as they do in immediate sequence to the words “building, hoarding, or hole,” does create some ambiguity as to what is meant by the word “place.” Therefore, in my opinion, we are entitled to take into consideration the position which this clause occupies in the Act, and the surrounding provisions, in order to ascertain what the true meaning of the word is. Now, the fasciculus in which the section occurs deals with precautions to be taken during the construction or repair of buildings and streets and with old and ruinous tenements. This leads, in my opinion, to the necessary conclusion that the section is not dealing with dangers created by the natural condition of the ground itself, but with dangers created by something artificial being erected or existing on the ground. “Buildings, hoardings, and holes” are just what one invariably finds where a new building is being erected or an old building is being demolished, and I think we must construe “any other place” appearing in collocation with these words as referring to a place rendered dangerous by some similar artificial construction.

Even if I had been inclined to take a different view of the meaning of the section, I think the fact that a similar section was construed by a strong English Court sixty years ago, in a decision which apparently has never been doubted since, in the same manner as we propose to construe section 190 now, would have justified me in reaching the conclusion I have done—Wilson v. Mayor and Corporation of Halifax . Accordingly, I think the appeal should be dismissed and the interlocutor of the Sheriff affirmed.