Headnote:
In July 1869 Mr John Crawford brought an action of suspension and interdict against the Magistrates and Town Council of Paisley, of which the prayer was as follows:—“May it therefore please your Lordships to suspend the proceedings complained of; and to interdict, prohibit, and discharge the respondents from taking down and demolishing the Cross Steeple of Paisley, by themselves, or by others acting by or under their orders and authority; or, at all events, from proceeding to take down the said steeple in the meantime, and until it be judicially ascertained, either by the inspection and report of some skilled and impartial architect, or other competent person, or in such other manner as may be determined by the Court, that the said steeple cannot be repaired or made permanently secure and that it is absolutely necessary for the safety of life and property it should be taken down; and, accordingly, to remit to such competent inspector or inspectors, and to determine in accordance with his or their report; and, in any event, to prohibit, interdict, and discharge the respondents from taking down the said steeple until they, as representing the said community of Paisley, have come under an undertaking either to rebuild the said steeple on its present site, or to erect a new one, equally good or better, on another site, to be approved of by the inhabitants or by the Court; and further, and in any view, to find that in the circumstances of the case the present application was reasonable and proper, and that the complainer is entitled to his expenses thereanent from the respondents, as representing the said community; or to do otherwise in the premises as unto your Lordships shall seem proper.” After various procedure in the Bill Chamber and the Outer-House (reported
ante, vol. vi., p. 683), the Lord Ordinary (
Barcaple), on the motion of the respondents, remitted to Mr Bryce, architect, to examine the steeple of the Cross of Paisley, and report on its state as to the safety and convenience of the public; and thereafter, on 3d December 1869, having considered the report, granted authority to the Magistrates to take down the steeple, as being in a dangerous state.
A proof of the averments of the parties was then taken before the Lord Ordinary, who on 17th December pronounced this interlocutor:—“The Lord Ordinary having heard counsel for the parties, and
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considered the proof and closed record, Finds it proved that when the Magistrates and Town Council of Paisley resolved to take down the Cross Steeple that was a measure necessary for the safety of life and property, owing to the state of the building and the nature of the soil on which it was founded; Repels the reasons of suspension; Refuses the interdict, and recals the interdict formerly granted, so far as not already recalled, and decerns: Finds the suspender liable in expenses; Allows an account thereof to be given in, and when lodged, remits the same to the Auditor to tax and report.”
The suspender reclaimed against that part of the interlocutor finding him liable in expenses.
Mair for him.
The
Solicitor-General in answer.
At advising—
Judgment:
The
Lord President—It is certainly very much to be regretted that the expenses in this case are so formidable, and in disposing of the question now before us, how these expenses are to be borne by the parties, we are bound to consider and decide, according to the best light we can get, who is the most to blame for these expenses. Now, the first question is whether there was any justification of Mr Crawford coming into the Bill Chamber with this application for suspension and interdict. The condition of the matter was this,—The Magistrates and Town Council were anxious to widen the High Street, and it was part of their plan in widening that street to take down the Cross Steeple, and rebuild it in another place. There cannot be the least doubt, I think, that on the face of their own minutes the object of widening the High Street was the one object which led them originally to consider the propriety of taking down the steeple. No doubt it also came out that the Cross Steeple was somewhat insecure, and reasonable fears were expressed by people in the neighbourhood that it might fall down. Measures were to be taken to prevent any such disaster; and the Town Council announced that they were to take down the steeple. It was in these circumstances that Mr Crawford, as a citizen of Paisley, interposed, and asked what is contained in the prayer of this note of suspension and interdict. It is said that the Magistrates and Town Council were entitled to deal with this matter according to their own discretion. They were not under any obligation to apply for any judicial authority; and that, if any judicial authority was necessary, the Magistrates had that authority in themselves; and, being clothed with that judicial authority—the jurisdiction of the Dean of Guild—they were entitled to go on by a resolution of the Town Council to do this thing. Now there seems to be a confusion of two or three different ideas in this argument. The first question is, whether a municipal body are entitled to do a thing of this kind without applying for any judicial authority? and that involves a very different question. It must be observed that this steeple is not only the public property of the burgh, but it is inalienable. They cannot sell it, and most unquestionably they can as little pull it down without judicial authority, unless the immediate risk is so imminent as to entitle them to do so for the safety of the community. If the Magistrates assume to themselves to exercise the jurisdiction of the Dean of Guild, they must do it as a Dean of Guild does. They cannot spontaneously exercise that jurisdiction. They must do it on the application of a party; and when one party applies another party may appear to oppose it; and, of course, it would be the duty of the Magistrates, as Dean of Guild, to hear the parties and determine according to what is right. But nothing of that kind is done. I cannot doubt, for my own part, that it would have been quite competent to apply to the Sheriff for authority immediately to take down and remove this piece of inalienable public property, on the ground that it was dangerous, and that the Sheriff would have the jurisdiction to grant such a warrant, and doubtless would have done so. But they did not do that. They proceeded to take measures for the demolition of this piece of public property, having already created the impression on the minds of the public, or some portion of the public, that there was some risk of the steeple falling. But that was not the true motive of their conduct. They had another motive, viz., a desire to widen the street and improve other property in the neighbourhood. Now, it was in these circumstances that this application for interdict was presented. I think that the terms of the prayer of the application are extremely important, and I have not heard from the Solicitor-General any sufficient answer to the argument which I think is properly founded on the prayer of the petition. What the suspender asks is simply interdict against the demolition of the steeple. But then he goes on to suggest very properly an alternative, which, like many alternatives in prayers of this kind, embodies what is really intended by the party making the application. His alternative is this:—“Interdict from proceeding to take down the steeple in the meantime, until it be judicially ascertained, either by the inspection and report of some skilled and impartial architect or other competent person, or in such a manner as may be determined by the Court, that the said steeple cannot be repaired permanently and made secure, and that it is absolutely necessary for the safety of life and property that it be taken down; and accordingly remit to such competent party to inspect and report, and determine in accordance with his or their report.” The respondents having proceeded without any judicial authority, the object of this part of the prayer is to have it judicially determined whether it is competent to have it inspected by persons of proper skill. That seems to me a very reasonable demand, and I think the respondents would have been well-advised if, instead of resisting the granting of any interdict, or even the order for answers on this note of suspension and interdict, they had at once consented to proceed in terms of this part of the prayer of the note, and agreed to have it remitted to a man of skill, just in the terms in which it was afterwards made in the month of December; and upon that I don't entertain the least doubt that the Court, in the month of July last, would have brought this dispute to a close in the Bill Chamber without the necessity of further decision. I think the respondents owe it to themselves that this was not done. It is said, no doubt, that some of the statements contained in the application for suspension were offensive to the Magistrates and Town Council. Well, there were some pretty strong statements, but I must say they were not unusual statements in support of an application of this kind; and I don't think public functionaries and public bodies are generally so very sensitive in matters of this kind as to render it quite indispensable for the vindication of their proper authority that they should plunge into a long litigation for the purpose of disproving some
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of the statements made in support of the application for interdict. In short, I think the respondents went wrong at this stage in not assenting to the course of procedure demanded by the complainer, and therefore I am of opinion that the expenses of the proceedings in the Bill Chamber ought to be borne by the respondents. But then, after the note was passed, a great deal of procedure took place in the Outer House and down to the time that the Lord Ordinary's interlocutor was pronounced. I cannot say I think either party has just adopted the course best suited to put an end to the litigation or diminish the expenses. There is a great deal of blame on both in that respect; and as regards that part of the expense from the passing of the note down to the Lord Ordinary's interlocutor, I think neither party ought to have any expenses. The remaining portion of the expenses we have to deal with is the expense incurred since the date of the Lord Ordinary's interlocutor. Now, as the complainer has obtained a very serious alteration of the Lord Ordinary's interlocutor—more than a half—I am of opinion he ought to have the expenses incurred since the Lord Ordinary's interlocutor.
Lord Deas concurred.
Lord Ardmillan—I share the regret of your Lordship in the chair that there has been so much, and such persistent and costly litigation, about this matter. The question on the merits has ceased by the removal of the steeple, but we have to decide the question of expenses—a serious question for the parties. The conduct and proceedings of the Magistrates are presented to us, I think, in two different aspects. My feeling is entirely in their favour in one of these aspects, but not entirely in their favour in another. I think the grounds of this complaint originally involved charges against the conduct and intentions of the Magistrates which are altogether without foundation. I think the Magistrates throughout have behaved with the very best intentions; and as they are charged with the responsibility of protecting life and property in that large town—whenever they discovered danger to that steeple, whatever be the cause, whether it had arisen from their own act or the act of their predecessors—whenever the steeple became swaying and pendulous (as was reported by an engineer)—I consider it was their bounden duty to take it down. I think they would have committed a gross breach of duty if, after being informed of its dangerous state, they had allowed it to stand, to the peril of the lieges. Now, there was a petition presented to them by 440 citizens of Paisley, on the 12th of January 1869, in which these citizens stated that the Cross Steeple was in an unsafe condition, and that it was necessary to take immediate action, so that life and property might be preserved. Another meeting was called by public notice, at which a similar resolution was adopted. Now, when the Town Council, who had previously consulted engineers, and knew the state of the facts, received the first of these petitions, they resolved that the steeple should be taken down and removed. A few days afterwards a deputation from the other meeting of the 27th January appeared, and they also urged the Council to take down and remove the steeple; and so they proceeded to do it. It is my opinion that it was their bounden duty to remove it, even if their own operations may have caused the mischief. Another action might lie if they had caused the danger, but the complaint against removing a steeple that is off the perpendicular, and is swaying over the heads of the community, cannot be affected by a statement that somebody, even though it were the parties themselves, had caused the danger. The first question and first duty was to protect the public from danger; and the Magistrates, I think, were right in doing that. But, then, I have next to review the proceedings with reference to the mode of removing the steeple without judicial authority, and with reference to the proceedings in this litigation; and here I would call attention to the fact that Mr Crawford wrote a letter to the Provost on the 10th March 1869, in which he suggested that the authority of the Supreme Court should be interposed before any attempt was made to meddle with the steeple. It is in favour of Mr Crawford's pleas on the question of expenses that he was the first to suggest an application to the Court. That letter lay upon the table. On the 16th April Mr Crawford wrote another letter, again proposing that an application should be made to the Court of Session for a remit to an engineer or architect. Then he presented his complaint, and it is a fact in Mr Crawford's favour that he made the alternative proposal that there should be a remit to an architect, to give an opinion on the subject. It does not appear that the proposal for any remit came from the respondents until December, when the Lord Ordinary ordered it. Had they suggested a remit when the case was in the Bill Chamber, the remit would have been ordered. On this ground, looking to the course of procedure in the lawsuit, as distinct from the duty and the act of the Magistrates, I am not prepared to express the same opinion of their procedure as litigants which I have expressed as regards their conduct as magistrates. As magistrates they acted rightly in not permiting a dangerous steeple to remain; but as litigants, the course they have taken has tended to increase the expenses, and I cannot but concur in your Lordship's view.
Lord Kinloch—I agree with your Lordship in the chair. I think that the complainer was entitled to come to this Court. The procedure of the magistrates was not satisfactory. I do not mean to make the slightest imputation upon their good faith; for I consider they intended nothing but the best; but still they left matters in a very unsatisfactory condition. I do not inquire whether they should or should not have gone to the Sheriff. There were various other judicial steps that might have been taken, but I do not think it was necessary for them to do anything judicially, in the strict sense of the word. The least they ought to have done, however, was this—they ought to have had the opinion of some such person as Mr Bryce, and then they ought to have framed a formal resolution of the Town Council, setting forth that the continued existence of the steeple was dangerous to the community, dangerous to life and property, and therefore they appointed it to be taken down. Such a proceeding would have been impregnable, but it was not taken, and Mr Crawford was entitled to bring them into Court to have the matter placed on its true footing. I think he wanted substantially to test the security of the steeple. He said a great deal more, and he is about to be punished for having said that great deal more, but undoubtedly what he asked in substance was that
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there should be a remit to a man of skill to report whether the existence of the steeple was attended with danger to life and property. I think it is a thousand pities that the remit was not made in the Bill Chamber, for most probably the proceedings would never have gone beyond the Bill Chamber had that been done. Therefore, I agree with your Lordship that Mr Crawford ought to have the Bill Chamber expenses. But when the parties got into the Outer House, I cannot say that Mr Crawford was altogether so well-behaved. He has a great many allegations on the record quite unjustifiable, as that the magistrates were making a mere pretext for the purpose of carrying through a job of their own, and that they had got up the cry of danger with the view of effecting a sale of the steeple. To that extent Mr Crawford was wrong; and, moreover, I think that as soon as Mr Bryce's report was produced, Mr Crawford ought no longer to have shilly-shallied about the matter, but ought to have given up the case entirely, reserving the question of expenses. Therefore, I also agree with your Lordship in holding he is not entitled to expenses in the Outer House; and as to the later expenses, I think he is entitled to these, inasmuch as he has obtained a considerable alteration on the interlocutor of the Lord Ordinary.
