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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> District Committee of Lower Ward of Lanarkshire v. Magistrates of Rutherglen [1902] UKHL 857 (05 August 1902)
URL: http://www.bailii.org/uk/cases/UKHL/1902/39SLR0857.html
Cite as: 39 ScotLR 857, [1902] UKHL 857
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SCOTTISH_SLR_House_of_Lords
Page: 857↓
House of Lords.
(Before
v.
(Ante, March 19, 1901, 38 S.L.R. 457, and 3 F. 742.)
Subject_Local Government — Burgh — County — Royal Burgh — Public Health — Local Authority — District Committee — Area within Ancient Royalty but Outside Boundaries for Police Purposes — Limits of Burgh and County — Statute — Construction — Public Health (Scotland) Act 1897 (60 and 61 Vict. c. 38), secs. 3 and 12 — Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50), sec. 44.
Facts:
Held ( rev. judgment of the First Division and restoring judgment of Lord Kyllachy, Ordinary) that the local authority, for the purposes of the Public Health Act 1897, within an area comprised within the ancient royalty of a royal burgh, but outside the area of the burgh for police purposes, was the district committee of the county council and not the council of the royal burgh.
This case is reported ante ut supra.
The pursuers the District Committee of the Lower Ward of Lanarkshire appealed to the House of Lords.
At delivering judgment—
Page: 858↓
The question which is now raised is, whether the District Committee of the Lower Ward of the county of Lanark or the Town Council of the royal burgh of Rutherglen are the local authority for executing the Public Health (Scotland) Act 1897 in the territory comprised within the royalty of the burgh but lying outside the parliamentary boundaries.
The answer to this question depends primarily upon the construction of the Act of 1897 itself. By section 12 of that Act it is enacted that the following shall be the local authority to execute the Act within the districts thereunder stated—(1) In burghs subject to the provisions of the Burgh Police Act 1892 the town council or burgh commissioners; (2) In other burghs the town council or board of police, as the case may be; (3) In districts where the county is divided into districts under the Local Government (Scotland) Act 1889, and subject to the provisions of section 17 of that Act as amended by this Act, the district committee. The first category (we have seen) includes all burghs other than the five burghs scheduled to the Act of 1892. The authority to execute the Police Act of 1892 is the town council in royal burghs, and in what are called parliamentary and police burghs the burgh commissioners. There is no definition in the Act of 1897 of the boundaries of burghs for the purpose of that Act. The Lord President, delivering the judgment of the Inner House, has held that the word “burgh” in section 3, when applied to a royal burgh, includes the whole area of the royalty, and, if I understand his Lordship rightly, he deems it wrong to refer to earlier Acts in which a more restricted definition of the boundaries of burghs is given for the purposes of those Acts. In my opinion it is impossible to construe the provisions of the Act of 1897 alone without reference to several earlier Acts.
Let us begin with the District Committee. In order to understand that expression we are at once referred to the Local Government Act 1889, and the provisions of that Act must therefore be examined. By section 44 of that Act and for the purposes of that Act it is provided ( a) that counties shall have the boundaries which they have for the purposes of the Roads and Bridges (Scotland) Act 1878; ( b) that the boundaries of burghs for the purposes of the Act shall be those fixed and determined for police purposes under any general or local Act. In the Roads and Bridges Act 1878 (section 46) the boundaries of burghs are described in the same way as in the Act of 1889, and (section 3) “county” means the county exclusive of any burgh wholly or partly situate therein. Without troubling your Lordships by a minute examination of other sections of the Act of 1889 1 hold it to be plain beyond all controversy that the appellants, the District Committee of the Lower Ward of the county of Lanark, is a District Committee within the meaning of section 11 (3) of the Act of 1889, and that its district comprises the area in dispute lying outside the police boundaries of the burgh of Rutherglen.
It is not disputed by the respondents that by the combined effect of the Roads and Bridges Act 1878 and the Local Government Act 1889 the appellants are the highway authority within the whole of their district, including the area in dispute, and are also the authority to execute the Public Health Acts within their district, excluding the area in dispute. But it is said that public health powers within that area were not transferred to them by the Act of 1889. This appears to me immaterial for the purposes of the present inquiry, which is, whether the District Committee was made the public health authority within that area by the subsequent Act of 1897, it may be for the first time. It is not necessary to decide the point now, and it will probably never require to be decided, but I am by no means prepared to say, having regard to the provisions in sections 37 and 77 of the Act of 1889, that the appellants were not by that Act made the public health authority within the whole of their district.
I come to the conclusion that under section 12 (1) of the Act of 1897 the appellants are made the authority to execute the powers of that Act throughout the whole of their district, and I do not think there is any ambiguity in this enactment. County and burgh are mutually exclusive expressions. Reading sub-section (1) by the context of the unambiguous enactment in subsection (3), I think it must mean burghs not included in districts of counties, or, in other words, the word burghs has the same restricted meaning as it has in the Act of 1889. I think that this construction is aided by the reference to the provisions of the Police Act 1892, and by the assessment clauses (135 and 136), which were commented on by the Lord Advocate.
Another point raised by the respondents was that the adoption of the Police Act 1862 by the Town Council of Rutherglen in the year 1863 extended to the whole royalty, or, in other words, that the police area was coterminous with the whole royalty of the burgh. This point has been very fully discussed by the Lord Ordinary, and I agree with him in the conclusion he came to, and also in the reasons given by him.
It is somewhat difficult to tread one's way with safety through this wilderness of Acts, but one can detect one common purpose which runs through them, viz., to make the electoral area defined by the Parliamentary boundaries the area of the burgh for purposes of administration, first
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I therefore move your Lordships that the appeal should be allowed.
The theory of the Lord President is that the Act of 1897 itself sets up a standard for settling the boundaries between royal burghs and counties, and although he does not say so in so many words, he clearly implies that this is a different standard from that set up in the Act of 1889. This is the whole point of his Lordship's observation (in itself perfectly just) that the question arises upon the construction of the Act of 1897, and the Lord President's view is made clear by a sentence in his judgment—“The definition of burgh in the Act of 1889 is less extensive, but that appears to me to be of little moment in this question, as the Act of 1889 relates to county (not to burgh) administration, nor to a subject-matter affecting both like public health, with which the Acts of 1867 and 1897 deal.” Now, I am unable to think that the main proposition of this sentence is sound, or either of the reasons. This sentence, however, raises sharply the questions which are decisive of this appeal one way or other, and in proceeding to discuss them I may say in advance that my view is (1) that while the Act of 1889 is, it is quite true, a county Act, yet it of necessity and purposely dealt with the boundaries of royal burghs; and (2) that the Act of 1889 did deal directly with public health, because it for the first time made the administration of public health law a matter of county administration, and set up new bodies to administer it, the boundaries of whose jurisdiction could only be fixed by fixing at the same time and by the same Act the boundaries quoad hoc of the adjoining royal burghs.
Well now, turning first, as the Lord President very properly requires, to the Act of 1897, I find that beyond defining “burgh” to include “royal burgh” (which leaves the question what is a royal burgh where it was), and “county” by words identical with those of the interpretation clause of 1889 (except that some words having nothing to do with the present question are left out), the definitions given in the Act of 1897 are neutral on this dispute. Next, I note that the Act of 1897 does not purport to deal with boundaries. Now, all this prepares one for finding that the existing jurisdictions are simply carried forward as they were under the Act of 1889. And this is quite distinctly done. Section 12 makes the local authority to be in burghs the town council or burgh commissioners, and in districts where the county is divided into districts under the Act of 1889, and subject to the provisions of section 17 of that Act as amended, the district committee. Then to make matters quite distinct the 190th section says—“Except in so far as expressly provided, nothing in this Act shall prejudice or affect the provisions of the Local Government (Scotland) Act 1889.”
On the Act of 1897, then, it seems to me to be perfectly plain that the county district committees were to go on under the Act of 1897 as they were under the Act of 1889. There is certainly nothing in the Act of 1897 which “expressly provides” that the area of their jurisdiction is altered, and that the area of their jurisdiction under the Act of 1889 included the area in dispute is, I think, demonstrable. I am not sure that it is even disputed. A few words on the scheme of the Act of 1889 will make the point clear.
Until 1889 the Public Health Acts were administered by parochial boards. In 1889, when Parliament was considering county government, it was apparently decided to take public health from the parish and make it a matter of county administration, a stronger driving power being desired in sanitary affairs. For the working of the Acts, however, it seems to have been deemed desirable to take an executive body having an area of superintendence wider than the parish but not so wide as the county. For this purpose there was ready to hand the plan of county districts by which the roads had been managed since 1878. The Act of 1889, then, made public health and roads go together and be administered by district committees of the county council. Accordingly those district committees created by the Act of 1889 were by section 17 of that Act made the local authorities for those districts for the purposes of the administration of the laws relating to public health.
How it can be said for the purposes of the present dispute that the Local Government Act does not relate to public health, I own I do not see, considering that it set up new authorities for the better administration of the laws in that behalf. But it is necessary to pursue the question of the areas of the jurisdiction of the new district committees.
Here again the example of the Road Act 1878 was taken; the boundaries of the burghs for the purposes of that Act were in royal burghs the boundaries for police purposes (section 46). So in 1889 the boundaries of burghs for the purposes of the Act of that year were to be the boundaries for police purposes, and the counties were to have the boundaries under the Road Act of 1878. The boundaries of county and
Page: 860↓
In these arrangements there does not appear to me, as a reader of this Act, to be anything arbitrary or mechanical. The main purpose of the Act of 1889 was to give municipal government to those parts of Scotland which had it not. Roughly speaking, the burghs had it and the counties needed it. But in order to accomplish this object, it was necessary to take account of the fact that the outlying territories of royal burghs, while the lands were held burgage, were not in fact enjoying the workaday services which are rendered by municipal government. The true criterion of boundaries, therefore, was to be found in “police purposes.” Accordingly while burghs of all and every kind were left untouched by the County Act of 1889, so far as they were effective municipal organisms, the boundaries of the counties were so drawn as to exclude all territory enjoying effective administration under Police Acts and to include territory not so privileged. The territory now in dispute falls within the latter category, and the Act of 1889 includes it in the county. The administration of the Public Health Acts having been made part of the business of the county, it is indissolubly bound up with the county organisation so set up in 1889. I am unable to discover the slightest ground for supposing that the Act of 1897 intended to break up the county bodies and to divorce public health from county business, and unless this was intended and was done the respondents' case entirely fails.
I may add that I heard no effective answer to the challenge of the appellants on the assessment section (136) of the Act of 1897, which applies directly and solely to burghs. What is postulated for that section is an authority which levies a general improvement rate over the lands in dispute. The respondents levy no such rate, and therefore could not execute the. Act in this territory.
I do not omit to remember the respondents' argument on the Public Health Act of 1867. I think that the territory now in dispute would, under the Act of 1867, have been administered by the respondents if (as is very improbable) its boundaries coincided with those of the parish. If the boundaries did not so coincide, then the Board of Supervision would have had to elect between them and the parochial board. But all this is of merely historical interest. The Act of 1889 intentionally ended these arrangements, and interposes an insuperable obstacle to the operation of piecing together the Acts of 1867 and 1897.
On the remaining question in the case, whether the police boundaries of Rutherglen have been validly made to coincide with those of the royal burgh, the First Division have not pronounced. It is therefore unnecessary for me to say more than that I entirely agree with the Lord Ordinary in his conclusions and in his reasons.
Interlocutor appealed from reversed, interlocutor of the Lord Ordinary restored, and respondents (the defenders) ordered to pay the costs in the Inner House and the House of Lords.
Counsel for the Pursuers, Respondents, and Appellants—The Lord Advocate (Graham Murray, K.C.)— Campbell, K.C.— W. Thomson. Agents— Mackenzie & Black, W.S., Edinburgh; Grahames, Currey, & Spens, Westminster.
Counsel for the Defenders, Reclaimers, and Respondents— Haldane, K.C.— Clyde, K.C. Agents— J. & A. Hastie, Edinburgh; John B. & F. Purchase, London.