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Cite as: [1908] UKHL 337, 45 ScotLR 337

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SCOTTISH_SLR_House_of_Lords

Page: 337↓

House of Lords.

Friday, February 21. 1908.

(Before the Lord Chancellor (Loreburn), Lord Robertson, and Lord Collins.)

45 SLR 337

Montgomerie & Company, Limited

v.

Haddington Burgh.

(Ante November 13, 1907, 45 S.L.R. 73.)

Subject_Public Health — Burgh — Statute — Sewers — Procedure in Formation of Sewers — Burgh Sewerage, Drainage, and Water Supply (Scotland) Act 1901 (1 Edw. VII, cap. 24), sec. 5.
Facts:

The Burgh Sewerage, Drainage, and Water Supply (Scotland) Act 1901, sec. 5, enacts—“The powers and duties of the town council of any burgh, as the authority under the principal Act [ i.e., by sec. 1, the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55)] with reference to sewerage and drainage or water supply, shall extend to the whole area of the burgh as existing for the purposes of the Public Health (Scotland) Act 1897, and the town council of any burgh as the authority under the principal Act, in addition to the powers conferred upon them by the principal Act or any other Act, shall, with reference to sewerage and drainage or water supply within such area, have the same rights, powers, and privileges as are conferred by the Public Health (Scotland) Act 1897 upon local authorities under that Act in districts other than burghs, with the exception of the rights, powers, and privileges conferred by sections one hundred and twenty-two and one hundred and thirty-one of the last-mentioned Act, to which sections the present section shall not apply, and in so far as necessary for giving effect to this enactment the last-mentioned Act, and the Acts and parts of Acts incorporated therewith, are, subject to the necessary modifications, incorporated with the principal Act.…”

Held that under the above-quoted section a burgh, in the formation of sewers, is entitled to proceed either (1) under the provisions of the Burgh Police (Scotland) Act 1892, or (2) under the provisions of the Public Health (Scotland) Act 1897, both of which are a complete code within themselves; and in particular, having proceeded under the Act of 1897, a burgh is not bound to obtain the consent of proprietors required by sec. 217 of the Act of 1892.

Headnote:

This case is reported ante ut supra.

Montgomerie & Company, Limited, pursuers and reclaimers, appealed to the House of Lords.

At the conclusion of the appellants' argument—

Judgment:

Lord Chancellor—I agree with the conclusion of the Second Division for one short reason. The pursuers' contention is that the works executed by the defenders could not lawfully be executed without their consent as required by section 217 of the Burgh Police (Scotland) Act 1892. Now in my opinion that section does not touch this case at all. The Act of 1892 furnished burghs with one method of carrying out sewerage works. Another Act, the Public Health (Scotland) Act 1897, furnished burghs with another method of carrying out sewerage works, and each of those methods was complete in itself. In 1901 an Act was passed which put an end to some of the differences between those two methods, and also contained a section numbered fifth, which to my mind is the only section of that Act which really concerns us to-day. By that section a burgh obtained or retained all the powers created by the Acts of 1892 and 1897, save as altered by the Act of 1901; and the Act of 1897 was incorporated with the Act of 1892 so far as was necessary to give effect to that enactment.

In my opinion the defenders, as the result, possess the right either to proceed under the Act of 1892 (in which case the pursuers' consent was, I assume, needed), or to proceed under the Act of 1897, in which case the consent was not needed. They elected to take the latter course. The appellants cannot dispute that if this be so their appeal must fail; but they say that the effect of incorporating the latter with the earlier Act was to qualify the powers of the latter Act by the restrictions contained in the former, and that as consent is required by the Act of 1892, so it is now required, if the powers of 1897 are exercised, because of the incorporation.

I can see no foundation for this view. Section 217 of the Act of 1892 which requires the consent, is expressed to be a restriction only as to what is contained in that Act. If the appellants' contention prevails, the mere incorporation of a later Act would make it a restriction as to what is not so contained.

I think that this is really a plain case, and that the appeal ought to be dismissed.

Lord Robertson—I concur, and for the reasons which have been given by my noble and learned friend on the woolsack.

In reaching this conclusion I do not suppose that your Lordships applaud the legislation as it stands, and it is doubtful whether it is either symmetrical or even entirely coherent; but I am afraid as regards some modern legislation the maxim applies which primarily relates to an earlier system— Non omnium a majoribus nostris constituta ratio reddi potest.

Lord Collins—I am of the same opinion.

Their Lordships dismissed the appeal with expenses.

Counsel:

Counsel for the Appellants (Pursuers and Reclaimers)— Clyde, K.C.— Horne. Agents— T. S. Paterson, W.S.. Edinburgh— John Kennedy, W.S., Westminster.

Counsel for the Respondents (Defenders and Respondents)— Dean of Faculty (Campbell, K.C.)— Malcolm. Agents— John C. Brodie & Sons, W.S., Edinburgh— Grahames, Currey, & Spens, Westminster.
1908