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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Parochial Board of Bothwell and Another [1873] ScotLR 10_250 (7 February 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0250.html Cite as: [1873] SLR 10_250, [1873] ScotLR 10_250 |
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Page: 250↓
Held that it is not competent to bring a special case unless the question is one which could be tried in some known form of process between the same parties.
This case was presented by the Parochial Board of the parish of Bothwell—the Local Authority of that parish—under The Public Health (Scotland) Act, 1867, and Mr Thomas Pearson, a proprietor and occupier of lands and premises in the parish.
The facts set forth in the case were as follows:—In 1866 the first parties, as the local authority in the said parish under the Nuisances Removal (Scotland) Act, 1856, in virtue of the powers contained in that Act, and also in the Sewage Utilization Act, 1865, and the Sanitary Act, 1866, so far as these last two mentioned Acts applied to Scotland, executed certain drainage works within a portion of its district. In November 1867 the local authority resolved to form a portion of its district (including the portion in which the drainage work already mentioned had been executed) into a special drainage district, under The Public Health (Scotland) Act, 1867. One of the proprietors in the proposed district appealed against the resolution defining the district, and the Sheriff sustained the appeal. Then two other proprietors opposed the carrying out of the scheme, on the ground that certain proposed outlets would be hurtful to their properties, and raised actions of suspension and interdict against the local authority. The local authority, however, executed the proposed work, with the exception of a portion which they could not complete on account of the legal proceedings mentioned above. In the course of the execution of the works expenses were incurred—(1) in giving the statutory notices regarding the formation of the special drainage district; (2) in defending the appeal against the resolution defining the special drainage district; (3) in defending the actions before referred to; and (4) in obtaining plans of a proposed intercepting sewer, in order to a compromise of the questions in dispute. The object of the case was to ascertain against what assessment these expenses were chargeable; and the questions submitted to the Court were:—
“(1) Are the expenses which were incurred in connection with the formation of the special drainage district chargeable against the special drainage assessment leviable under section 93 of the ‘Public Health (Scotland) Act, 1867’?
Or,
(2) Are these expenses general expenses incurred in executing the Act, and chargeable against
Page: 251↓
the assessment leviable under sub-section 2 of section 94 of the said Act? (3) Are the expenses incurred subsequent to the formation of the said special drainage district in connection with the actions before-mentioned, and with the proposed compromise of these actions, chargeable against the special drainage assessment leviable under section 93 of the ‘Public Health (Scotland) Act, 1867’?
Or,
(4) Are these expenses general expenses incurred in executing the said Act, and chargeable against the assessment leviable under subsection 2 of section 94 of the said Act?
(5) If the expenses incurred in connection with the formation of the special drainage district, and the expenses incurred subsequent to the formation of the said district, or either of these expenses, are held to be chargeable against the assessment leviable under sub-section 2 of section 94 of the said Act, is that assessment leviable on and within the special drainage district alone, or upon the whole district of the local authority?”
At advising—
I am always unwilling to refuse to entertain a Special Case, for I think that it is a very expedient and economical mode of trying a question of law when parties are agreed upon the facts. But we must take care not to pervert the provisions of the statute for the purpose of enabling parties to bring questions before the Court which they could not raise in any other process. The meaning of the statute is, that when parties could try the question in some known process, and agree as to the facts of the case, they may bring a Special Case. Now, could the Parochial Board of Bothwell and Mr Pearson have tried the question here presented to us in any known process. I think not, for the case rests only on the statement of parties that it is intended to impose an assessment. Now, Mr Pearson could not have brought a suspension of the threatened assessment, and he could not have brought an action of declarator, for in that case it would have been necessary to call all the other ratepayers as parties to the case. If, then, this matter could not be tried either in a suspension or in a declarator, I do not know of any other form of process in which it could even be attempted to try it. Thus the question here, being one which cannot be tried by a known form of process, it cannot be made the subject of a Special Case. I therefore think that this case should be dismissed.
Another objection to this case is that no assessment has been imposed, and the question presented to us may never arise, and we have often refused action when matters were in that position. I therefore concur with your Lordship that the case should be dismissed.
The Court dismissed the case as incompetent.
Counsel for the First Party— Balfour. Agents— Morton, Neilson, & Smart, W.S.
Counsel for the Second Party— Lancaster. Agents— Jardine, Stodart, & Frasers, W.S.
