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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Beckett v. Hutcheson [1866] UKHL 185_1 (26 February 1866)
URL: http://www.bailii.org/uk/cases/UKHL/1866/01SLR0185_1.html
Cite as: [1866] UKHL 185_1, 1 ScotLR 185_1
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SCOTTISH_SLR_House_of_Lords
Page: 185↓
House of Lords.
v.
Subject_Road Trustees — Jurisdiction of Court of Session.
Facts:
Held (aff. Court of Session) that Road Trustees acting in execution of an Act of Parliament were not controllable by the Court of Session in regard to a matter committed to their discretion, as to which the review of the Court of Session was excluded.
This is an appeal from an interlocutor of the Second Division of the Court of Session, deciding that the Statute-Labour Road Trustees of the Eighth Statute-Labour District of Dumbartonshire have such a discretion vested in them by the Act from which they derive their authority (10 Geo. IV., cap. 71), as renders them uncontrollable by the Court of
Page: 186↓
Session in case of their refusing to keep in repair a statute-labour road within their district; there being ample funds at their command for doing so, but no corrupt motive attributable to them. The respondent is the clerk of and represents the trustees. The statute under which those trustees act, and by which their duties and powers are defined is the 10th of George IV., cap. 71, entitled “An Act for further regulating the statute-labour and repairing the highways and bridges in the county of Dumbarton.” The second section of that Act nominates and appoints all persons having the dominium utile of lands in the said county valued in the cess-books at £100 Scots of valued rent, and also various other persons, to be trustees for making and repairing the highways, roads, and bridges, within the said county, and for executing all other the powers granted by the Act. The fifth section enacts that the trustees shall meet at Dumbarton at certain stated times in order to carry the Act into execution. The fifteenth section provides that the trustees shall have power to appoint the order in which the several roads and bridges within their districts shall be repaired, and to appropriate the services and monies to be exacted by virtue of the Act. The nineteenth section provides that if any person shall think himself or herself aggrieved by the valuation put upon their property by the trustees for the purpose of assessment, he or she may complain to the next general meeting or quarter sessions for redress, whose determination shall be final, without being subject to review by suspension, advocation, or reduction, or in any manner whatsoever. The sixty — fourth section enacts that all actions and complaints for all or any of the penalties and forfeitures imposed by the Act, and for any wrong or injury done or suffered in any matter relative to or in consequence of the powers by the Act given, shall, unless therein otherwise provided, be originally brought before two or more justices of the peace of the county; and the sixty-fifth section enacts, that in case any person shall think himself aggrieved by the determination of such justices, it shall be lawful for him to appeal to the next general quarter sessions of the peace, and the decision then arrived at shall not be subject to review in any court whatever.
The appellant in 1856 became proprietor, by purchase, of the lands and estate of Solsgirth, which are situated within the above-mentioned district of the county, and the only access to which from the turnpike road is by the statute-labour road called the Langmuir Road. In 1857 he let the coal and ironstone upon the lands to a Mr Gardner, on a lease for nineteen years, at a rental of £200, and thereafter Mr Gardner was in the habit of using the Langmuir Road for the carriage of his minerals to the station of the Edinburgh and Glasgow Railway at Kirkintilloch The road having become thoroughly unfit for use, the appellant made repeated applications to the road trustees to have it put in a stale of repair, and those applications having been rejected, he raised an action of declarator against them, concluding that it should be found and declared that it was their duty to keep in repair the statute-labour roads within their district, including the Langmuir Road; that they had failed in that duty, and should be ordained to make payment to the appellant of the sum of £100 damage, sustained by him in consequence of their neglect. The allegations of the appellant were not generally controverted, and in particular the respondent admitted that the trustees had not exercised their powers of raising money by assessment or by borrowing to the extent authorised by the Act. On the 14th of January 1863, Lord Kinloch (Ordinary) ordered a remit to a surveyor to report on the nature and condition of the road in question. The surveyor reported that the road was not only unfit for mineral, but for ordinary country traffic. The Lord Ordinary thereafter pronounced an interlocutor finding that the trustees had failed to perform their statutory duties in reference to the road in question, and that they were bound to put it in a state of repair fit for ordinary country traffic. Against this interlocutor the respondent reclaimed to the Second Division of the Court, and their Lordships thereupon recalled the interlocutor of the Lord Ordinary, and dismissed the action. Against that decision the present appeal is brought,
The Attorney-General, on the part of the appellant, said that there was no question as to the appellant having a sufficient interest to bring this action. The only questions to be considered were (first) whether the trustees had any duty imposed upon them by the statute; (secondly) whether the Court of Session had any jurisdiction, supposing that duty not properly performed; and (thirdly) whether there was in the present case such a non-performance proved. The learned counsel proceeded to review the different sections of the Act, contending that there was first of all imposed a duty, and next a discretion conferred as to the order in which it should be discharged; that the mode prescribed for settling disputes which might arise referred only to those arising amongst the trustees themselves, and was in no way applicable to an aggrieved heritor who was not a trustee.
The Attorney-General said he was not, but proceeded as a person who paid commission-money, and had lands adjoining the road the state of which he complained. The special provision as to settling the disputes mentioned only showed that in all other cases the ordinary legal remedies remained. Then as to the jurisdiction of the Court of Session, the trustees were bound, for example, to hold meetings at certain stated times, and they were also bound to apply the produce of the assessment in the manner declared by the Act. Could it be said that in case of a failure in either of those respects the trustees were not amenable to law?
The Attorney-General said that the law of Scotland was the same, though in that country they had no such process. The question whether there had been a non-performance of duty had not been dealt with by the Second Division, but the Lord Ordinary had found that the road was quite unfitted for use. The learned counsel proceeded to review the opinions of the learned Judges in the Court below.
The Attorney-General said he did not insist in the claim for damages, of which the other conclusions of the summons were quite independent; at the same time, in the case of Brownlow v. the Metropolitan Board of Works, decided by the Queen's Bench a short time ago, a similar provision had been held to include damages found to be due on account of injury inflicted. The learned counsel concluded by submitting that Lord Cowan was wrong in saying that the only instance in which road trustees had been controlled by the Court was in the case of Walkinshaw, under the General Turnpike Road Act, and referred to Guild v. Scott (21st Dec. 1809, F.C.); Mackintosh v. Stirlingshire Road Trustees ( 12 D., 85); Threshie v. the Magistrates of Annan ( 8 D., 276); and to Reid v. Knox ( 23 D., 216), in support of his contention.
Mr Anderson, Q.C., then followed on the same side, and said there was here no dispute as to the facts, but only as to whether an action would lie. Now, there was no such thing as a mandamus in Scotland; the only way it was possible to proceed was as they had done in the present case—by summons. He referred to Erskine 1, 3, 18, to show that the Court of Session had the power which the appellant endeavoured to evoke.
Page: 187↓
Mr Anderson said any person injured could do so, and that in his own name.
Mr Anderson said they would be guilty of a contempt were they not to obey it; the appellant, if he chose, too, could put the road in repair, and an action would then lie against the trustees for the money expended.
Mr Anderson submitted that the provisions in the Act as to the settlement of disputes had reference only to disputes amongst the trustees themselves.
Mr Anderson explained that the valuation of the appellant's property was made in the reign of Alexander the Third.
Mr Anderson said the valuation was made before the time of Robert the Bruce, and that the property was, of course, very much more valuable now.
Mr Rolt, Q.C., on the part of the respondent, submitted three propositions to the House, 1st, That there was no obligation upon the trustees to keep the roads in any definite repair; 2d, That in that view of the obligation, it was impossible to raise any case against them unless for corrupt abandonment of duty; and 3d, That even if the obligation was larger than he had submitted by his first proposition, that the Court of Session never had any jurisdiction in the matter. “Repair” was a flexible word, and it would never do to allow a person to go to the Court of Session because his individual actions differed from those of the trustees. Then as to the jurisdiction of the Court, there was neither right nor obligation regarding the repairs of roads previous to 1669. New rights and obligations were then created by statute, and a specific remedy prescribed; that remedy was therefore the only one which could be pursued. The cases of Guild v. Smith and of Walkinshaw had no bearing on the present question; they were brought under a special provision in the General Turnpike Act, which was not contained in the Act now under consideration. Then, as regarded the Act itself, a person, if a trustee, could not appeal to the Court of Session, and it was absurd to claim a higher right for a person not in that position. The sixty-fourth and sixty-fifth sections provided an ample remedy for everyone. Justices of the peace had ample power to enforce this order; theirs was the proper jurisdiction, and their decision was final.
Mr Rolt submitted that was so.
Mr Rolt said he thought clearly not.
Mr Anderson, Q.C., then replied on behalf of the appellant. He said Mr Rolt was quite wrong in supposing that the Act of 1669 was the first upon the subject of repairing highways; he seemed to suppose that Scotland was a very barbarous country in that respect, whereas there were Acts to be found upon the subject as early as the reign of King David. The Act of 1669 did not therefore create new rights and obligations, and it was unnecessary that the remedy it provided should be exclusively followed. Again, as to the differences said to exist between the present Act and the General Turnpike Acts, the sole difference was, that by one the roads were kept in repair by funds derived from a toll, and in the other by statute-labour on its conversion into money. There was a trust to repair in the one case just as much as in the other. Guild v. Scott was not an action to recover penalties, but a declarator; and Walkinshaw's case, though brought under the authority of a clause in the General Turnpike Act, might have been equally well brought as an action at common law. He submitted that the present was the proper and only remedy open to the appellant; that the road was proved to be in a state unfit for traffic, and the trustees to have ample funds in their possession for its repair; and that the appellant was entitled to have the trustees ordered to perform their duties.
The Lord Chancellor then rose and moved the judgment of the House. He said—My Lords, I can entertain no doubt whatever that the interlocutor of the Court below is quite right. The action in which that interlocutor was pronounced was founded upon a local statute passed in the year 1829, for the purpose of regulating the statute-labour and repairing the highways and bridges in the county of Dumbarton. There had been previous Acts upon the same subject, which had, however, expired; and in coming to a decision upon the question now before us we must be guided by the Act of 1829 alone. The second section of the Act, my Lords, nominates and appoints gentlemen enjoying a certain property qualification to be trustees for making and repairing the highways, roads, and bridges within the county, and for executing all the other powers by the Act given and granted. I called the attention of the Attorney-General to the fact that there seemed to be no clause which expressly imposed upon the trustees the duty of putting the roads in repair, and he admitted that he could only refer me to the clause which I have just read. Now, there is no doubt that the purpose which the Legislature had in view in appointing those trustees was that the highways might be kept in a state of repair, and it accordingly directed them to do everything which would reasonably tend to the accomplishment of that object. How did the Legislature think this duty would be most adequately performed? The second section applies to all the road trustees in the county, but section five directs them to divide the county into districts, and at their general meetings to appoint convenient times for the meeting of the trustees within their respective districts. Then the duties of those district trustees are defined by the fifteenth section. They are to have the direction and cognisance of the several roads and bridges within their districts, and to have power to appoint the order in which the same shall be made or repaired, and to appropriate the services and monies to be raised by virtue of the Act. The section also provides—that no trustee shall act within a district in which the lands do not lie upon which he rests his qualification; that they shall hold meetings at certain times; and that in case any difference of opinion should arise amongst the trustees concerning the application of the services or money, any one of the trustees who shall think himself aggrieved, or shall think such application improper, may complain to the next general meeting, or to the next quarter sessions of the peace, if joined in such complaint by any one of the trustees in the same district; and the sentence or determination of the said general meeting or quarter sessions is declared to be final and conclusive, without being subject to review by advocation, or suspension, or by process of reduction, or in any manner of way whatsoever. Now, what do we gather from these enactments is the duty of the trustees? No more than this—to meet together at certain times, and to the best of their knowledge and judgment to determine what sum of money should be raised, and how it should be expended. Should they fail in the performance of that duty—fail to hold meetings and to exercise the powers conferred upon them—a right to compel them would arise upon general principles
Page: 188↓
Interlocutor affirmed, and appeal dismissed with costs.
Counsel for Appellant—The Attorney — General (Palmer), and Mr Anderson, Q.C. Agents— Messrs J. & F. Anderson, W.S., and Messrs Deans & Macuckie, London.
Counsel for Respondent— Mr Rolt, Q.C., and Mr Buller. Agents— Mr John Forrester, W.S., and Messrs Loch & M'Laurin, London.