Scottish Court of Session Decisions

The exclusive jurisdiction conferred on Sheriffs by the General Police Act, is limited to assessments under the Act.

By the Act 7 and 8 Vict. c. 52, intituled “An Act to explain and amend the Acts incorporating the British Society for extending the fisheries, and improving the sea-coasts of the kingdom; for enlarging and improving the harbour of Pulteneytown, in the county of Caithness, and for lighting, cleansing and improving the said town, and better supplying the same with water,” Commissioners were appointed for carrying into execution the said Act, so far as regarded the purposes of cleansing, lighting, watching, and improving the town of Pulteneytown, and entered upon the execution of their duties under the Act. Subject to certain modifications introduced by the Act 20 and 21 Vict. c. 93, the Commissioners continue in the due exercise and discharge of the powers and duties conferred and imposed on them by the said Act, 7 and 8 Vict. c. 52. By the 250th section of the said Act, 7 and 8 Vict. c. 52, it is enacted that “ it shall be lawful for the said Commissioners from time to time to agree with the Commissioners of Supply for the county of Caithness, acting under an Act passed in the Session of Parliament held in the second and third years of the reign of Her Majesty Queen Victoria, intituled an Act to amend the mode of assessing the Rogue Money in Scotland, and to extend the purposes of such assessment for the appointment of such number of constables by the said Commissioners of Supply, or by them and the Commissioners hereby appointed, jointly, as may be necessary for the proper protection of the inhabitants and property within the limits of this Act; and, failing such agreement, it shall be lawful for the Commissioners under this Act to appoint such constables and other officers, and to allow them such salaries or wages as they shall think proper; and it shall be lawful for the Commissioners from time to time to remove any such constables or officers as they shall think fit; and, in the event of the salaries or wages of such constables and officers under this Act being paid by the Commissioners, it shall not be lawful for the Commissioners of Supply to assess, for the purposes of the said last mentioned Act,, any lands, houses, or heritages within the limits of this Act.” The Pulteneytown Commissioners and the Commissioners of Supply for the county of Caithness having failed to agree for the appointment of constables, the former body, in terms of said 250th section, appointed in the year 1845, and have ever since maintained, such constables, allowing them certain salaries or wages.

In July 1868 Mr Henderson, Treasurer to the Commissioners of Supply for the county of Caithness, and collector of the assessments levied under the Act 20 and 21 Vict. c. 72 (General Police Act;, issued a certificate including the Pulteneytown Improvement Commissioners as liable for police assessments, and a warrant thereon was granted by the Sheriff. The Pulteneytown Commissioners brought this suspension, contending that Pulteneytown was a town which had a Police Act, viz., 7 and 8 Vict. c. 52, and was in the sense of the Act 20 and 21 Vict. c. 72, a “ burgh” within said county, and that it was ultra vires of the Commissioners of Supply to impose the said assessment. The respondents contended that Pulteneytown was part of the county of Caithness, and was not a burgh within the county. They pleaded—“ (1) The subject of this action being a dispute between the complainer and the Commissioners of Supply, relative to the police assessment leviable under the Act 20 and 21 Vict. c. 72, the Sheriff of Caithness is the only competent judge in the cause, and this application to the Supreme Court should be dismissed. (2) The lands and heritages in Pulteneytown, belonging to the Pulteneytown Improvement

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Commissioners, upon which the assessment complained of has been imposed, being part of the county of Caithness, the Commissioners of Supply of that county are under the statute entitled and bound to assess said subjects for the maintenance of the police force of said county.”

The Lord Ordinary (Barcaple) sustained the reasons of suspension, adding this note:—“ The exclusive and final jurisdiction given to the Sheriff by the General Police Act, 20 and 21 Vict. c. 72, sect. 33, is only in regard to disputes relating to assessments under that Act. The sole question in the present case is, whether the Commissioners of Supply had power by that Act to make any assessment at all within Pulteneytown. This is quite different from a dispute relating to an assessment admittedly made under the Act, where the question is as to amount, regularity of procedure, or some similar matter. The Lord Ordinary has no hesitation in repelling the objection to the jurisdiction.

“ The power of the Commissioners of Supply to assess for police purposes is limited by section 29 of the General Police Act to lands and heritages within the county. By the interpretation clause, sect. 78, the word ‘county’ includes all burghs and places within the county, not being a burgh or town which has a Police Act, or an establishment of police under the provisions of the Act 3 and 4 Will. IV, c. 46, or 13 and 14 Vict., c. 33. The word ‘burgh’ is interpreted to mean a royal or parliamentary or other burgh or town which has a Police Act, or an establishment of police under either of the last mentioned Acts. Pulteneytown has not come under either of these Acts, and the question is, whether it is a town which has a Police Act? If it is, then it is not, in the sense of the statute, part of the county of Caithness, within which alone the Commissioners of Supply have power to assess.”

“ The Lord Ordinary thinks that the local Act founded upon by the complainer must be held to be a Police Act. It makes provisions in regard to other matters, but by sect. 250 it gives power to the Pulteneytown Commissioners to appoint constables for the protection of the inhabitants and property within the limits of the Act, with the necessary powers of control and dismissal. By sect. 251 they have power to provide watchhouses and lock-up houses. The Act creates a number of police offences, for which it enacts penalties. It also gives the Commissioners power for lighting, cleansing, improving, and bringing water into the town. And they are empowered to levy rates for carrying all the purposes of the Act into effect.

These are generally the powers which are to be found in the Police Act of a town which, not being a burgh, has not a magistracy of its own. The criminal jurisdiction in reference to police offences is necessarily vested in the Sheriff and Justices of the Peace.

“ By section 250 the Pulteneytown Commissioners are empowered to agree with the Commissioners of Supply for the appointment of such number of constables as may be necessary for the proper protection of the inhabitants and property within the limits of the Act. The section proceeds,— ‘failing such agreement, it shall be lawful for the Commissioners under this Act to appoint such constables and others officers, and to allow them such salaries or wages as they shall think proper. There is no ground on which it can be alleged that this material provision of the statute has been in any way repealed or set aside. As admittedly no agreement has been entered into by the Pulteneytown Commissioners with the Commissioners of Supply, the former are empowered by their Act to appoint and pay ‘such constables,’—that is, referring to the immediately preceding context, such number of constables—as may be necessary for the proper protection of the inhabitants and property. The respondent founds upon the circumstance that the Commissioners of Supply are described in the clause in question as acting under the Act 2d and 3d Vict. c. 65, the first statute by which they were empowered to assess for the establishment of the county constabulary. But it is unnecessary to consider whether the clause would not authorise an agreement with the same body of Commissioners of Supply now acting as to police assessments under the enlarged and improved provisions of the present Police Act. Whether such an agreement would be lawful or not, none has been come to, and in that state of matters the Pulteneytown Commissioners have undoubtedly power to appoint and pay a police force for the town.

“ The 250th section concludes with a provision that, in the event of the salaries of the constables being paid by the Pulteneytown Commissioners, it shall not be lawful for the Commissioners of Supply to assess for the purpose of the Act 2d and 3d Vict, c. 65, that is for police purposes, within Pulteneytown. The respondent founds on this as showing that Pulteneytown was not treated as having a Police Act, on the ground that otherwise such a provision would have been altogether unnecessary, inasmuch as by section 3 of 2d and 3d Vict. c. 65, the Commissioners of Supply were not entitled to assess within any town having a Police Act. It was quite natural that a special provision on the subject should be inserted in the local Act for the greater security of the inhabitants, and any argument founded on that fact does not appear to be of much force. But the Lord Ordinary does not think that it was an inappropriate or altogether unnecessary provision; looking to the enactment as to an agrement being entered into between the Pulteueytown Commissioners and the Commissioners of Supply for the appointment of constables, who were to be appointed either by the Commissioners of Supply or by both sets of Commissioners jointly under such an agreement, the Commissioners of Supply might have had power to assess if they were to pay the constables, but it was specially provided that in any case, whether there should be an agreement or not, they should not have power to assess if the Pulteneytown Commissioners paid the constables.

“The case of the British Fisheries Society v. Henderson, 4 Macpli. 492, does not seem to throw any light on this question.”

The Commissioners of Supply reclaimed.

Millar and J. Marshall for reclaimers.

Gordon and Black for respondent.

At advising—