BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The County Road Trustees of the County of the Lower Ward of Lanark v. Magistrates of Glasgow and Others [1887] ScotLR 24_635 (8 July 1887) URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0635.html Cite as: [1887] ScotLR 24_635, [1887] SLR 24_635 |
||
[New search] [Printable PDF version] [Help]
Page: 635↓
Right to Participate in Management.
In the case of a bridge which was locally situated partly in a county and partly in a burgh, and which accommodated traffic from an adjoining county and an adjoining burgh, held that under the 88th section of the Roads and Bridges (Scotland) Act 1878 the Secretary of State had power to determine, if he saw fit, that the bridge should be deemed to belong in common to the two counties and the two burghs, and to apportion among them, in such way as he should think right, the expense of managing, maintaining, repairing, or rebuilding the bridge.
Held that the two districts within which the bridge was not locally situated were entitled, as they were liable for its maintenance, to be represented in its management.
On the line of the Dalmarnock Road, between the city of Glasgow and the burgh of Rutherglen, the river Clyde was crossed by a bridge called Dalmarnock Bridge. The northern half of the said bridge was locally situated within the burgh of Glasgow, and the southern half was situated in the county of the Lower Ward of Lanark. The bridge was in a bad state of repair, and, owing to its construction and condition, required to be replaced by a new bridge. The County Road Trustees of the Lower Ward of Lanark applied
Page: 636↓
to the Secretary for Scotland, hereinafter referred to as the Secretary of State, under the 88th section of the Roads and Bridges (Scotland) Act 1878, to determine that Dalmarnock Bridge, in respect of its accommodating other traffic than that of the county of the Lower Ward of Lanark and the city of Glasgow, should be deemed to belong in common to the county or counties and burgh or burghs to be named in his determination. Section 88 enacts—“Whereas there are or may be bridges in Scotland which accommodate or may accommodate the traffic not only of the county or counties or burgh or burghs, as the case may be, within which they are locally situated, but also of the adjoining county or of other counties and burgh or burghs, or one or more of them, and it is not reasonable that the whole burden of managing, maintaining, repairing, and if need be, rebuilding such bridges, and of paying the debt affecting or which may affect the same, should be imposed upon the county or burgh within which they are so situated: Be it enacted that in respect of such bridges the following provisions shall have effect:—
“(1) The trustees of counties and burgh authorities may agree that any such bridge accommodates other traffic than that of the county or burgh in which it is situated, and may agree as to the proportions in which the debt (if any), and the cost of maintenance, and if need be of rebuilding such bridge, shall be borne and defrayed by the county or counties and burgh or burghs to which it is common; and such agreement, when confirmed by a resolution of the trustees in general meeting, and of the burgh authorities, shall have the same force and effect as an order by the Secretary of State, as provided hereinafter.
“(2) It shall be lawful for the county road clerk or clerk of supply of any county, or for the town-clerk or clerk of any burgh, to apply to the Secretary of State to determine that any bridge locally situated within a county or burgh, in respect of its accommodating other traffic than that of such county or burgh only, shall be decreed to belong in common to the county or counties and burgh or burghs to be named in his determination.
“(3) Upon such application being presented to the Secretary of State, he may, if he shall think fit, by any writing under his hand, appoint any two persons as commissioners to institute a local inquiry as to the circumstances of the case, and after hearing all parties interested, to report thereon to the Secretary of State, and for the purposes of such inquiry the commissioners shall have power, after such public notice as they may think sufficient, to examine witnesses on oath, and to call for such documents as they may consider necessary, and to do all such matters and things as may seem expedient to them for the purposes of the inquiry.
“(4) If the commissioners are of opinion that the Secretary of State should determine that the burden of managing, maintaining, repairing, and if need be rebuilding the bridge mentioned in the application, and of paying the debt affecting or which may affect the same, should not be borne wholly by the county or burgh within which the same is locally situated, they shall prepare and transmit along with their report the draft of the determination which they recommend that the Secretary of State should make, setting forth therein the proportions in which such burden should be borne by the county or counties which, as part or parts, or district or districts of such county or counties, or by the burgh or burghs named in the determination.
“(5) The Secretary of State after such further inquiry, if any, as he shall deem necessary, may approve of the draft submitted with or without alterations, and any determination made by him under his hand and seal shall have the same effect as if it were contained in this Act, &c. …”
In terms of said section Christopher N. Johnston, advocate, Edinburgh, and Alexander Moore, chartered accountant, Glasgow, were appointed Commissioners to institute the local inquiry, and to make the report provided for by the said section of the Act.
In the course of the inquiry a difference between the parties as to the construction of the Roads and Bridges (Scotland) Act 1878 came under the notice of the Commissioners, and as the true construction of that statute was a question which fell to be settled by a court of law and not by them, they stayed procedure to enable a Special Case to be prepared and submitted to the Court.
A Special Case was accordingly adjusted, to which the County Road Trustees of the County of the Lower Ward of Lanark were the first parties, the Magistrates and Town Council of Glasgow were the second parties, the County Road Trustees for the County of the Middle Ward of Lanark were the third parties, and the Magistrates and Town Council of the Burgh of Rutherglen were the fourth parties; and the judgment of the Court was craved upon these questions—“I. Has the Secretary of State power under the Roads and Bridges (Scotland) Act 1878 to determine, if he sees fit, that Dalmarnock Bridge shall be deemed to belong in common to the County of the Lower Ward of Lanark, the City of Glasgow, the County of the Middle Ward of Lanark, and the Burgh of Rutherglen, and to apportion among them in his determination, in such way as he thinks right, the expense of managing, maintaining, repairing, and, if need be, rebuilding said bridge? or, Has the Secretary of State power to determine only the proportions of said expense to be borne by the third and fourth parties, and does the balance of said expense fall to be borne equally by the first and second parties?
“II. In the event of it being determined by the Secretary of State that the County of the Middle Ward of Lanark and the Burgh of Rutherglen are bound to contribute to the expense of rebuilding and maintaining Dalmarnock Bridge, are said county and burgh entitled to take part in the management of said bridge and to appoint representatives on the Joint Bridge Committee thereof?”
For the purposes of the Case parties were agreed that Dalmarnock Bridge accommodated in the sense of the said 88th section, not only the traffic of the County of the Lower Ward of Lanark and of the City of Glasgow, but also that of the County of the Middle Ward of Lanark and of the Burgh of Rutherglen.
Page: 637↓
As regarded liability, the first, third, and fourth parties maintained that on a sound construction of the statute the Secretary of State fell to declare that Dalmarnock Bridge should be deemed to belong in common to the whole parties hereto, and to apportion the expenses among them severally in such proportions as might be right, having regard to the extent of the use of said bridge by the respective localities and other similar considerations; and that the Commissioners ought to submit a draft determination giving effect to this view.
The second parties maintained that the relative liabilities of the first and second parties for the expense of maintaining, managing, repairing, and if need be rebuilding the bridge, were settled by sections 11 and 37 of the Roads and Bridges (Scotland) Act 1878, and that such liabilities must remain equal to each other, and that section 88 of the said Act made provision whereby “the adjoining county, or other counties or burgh or burghs” (other than those whose liability is fixed by the local situation of the bridge), whose traffic was accommodated by the bridge, might be called upon to contribute towards such expense.
Further, they maintained that the duty of the said Commissioners was confined, and the determination of the Secretary of State was accordingly limited to fixing the contributions to be made by the county of the Middle Ward of Lanark and the burgh of Rutherglen towards such expense, leaving the balance thereof to be defrayed by the first and second parties equally in terms of section 37.
Section 37 (1) ( d) enacts—“Where a bridge is not situated wholly within one county or burgh, the expense of maintaining, and if need be of rebuilding the same, shall, failing agreement, be a charge equally against the trustees of the county or counties and local authority or authorities of the burgh or burghs within which it is partly situated. The management of the bridge shall, failing agreement, be vested in a committee (hereinafter called a joint bridge committee), to be appointed by the trustees or local authorities chargeable with the cost of maintenance and rebuilding.”
As regarded management, the second parties contended as against the third and fourth parties, that in any case they had no right to share the management of the bridge.
The second parties referred to the case of Magistrates of Glasgow v. Police Commissioners of Hiilhead, March 20, 1885, 22 S.L.R. 580, 12 R. 864, affd. 23 S.L.R. 620, 13 R. 110, 11 App. Ca. 699.
At advising—
Now, there is no question raised here as to the circumstances of the case bringing these parties within the operation of the 88th section of the statute. They are agreed that in the circumstances their respective rights are to be regulated under the provisions of that section. But the town of Glasgow, the second party, maintain that although their liability is to be regulated by the provisions of that statute, it is to be done so subject to this qualification, that whatever portion of the expense of maintaining and rebuilding this bridge is laid upon the burgh of Rutherglen, and the trustees of the Middle Ward, the shares of the town of Glasgow and the Lower Ward respectively must be equal, because the 37th section expressly provides that where a bridge is locally situated, as regards the situation, in the same way as this bridge is, the town and the county respectively shall bear an equal share of the expense of maintaining or rebuilding it, and that that being so, the way in which the liability is to be dealt with under the 88th section is, that the Secretary of State shall fix what in the circumstances of the case is a proper amount of contribution to be made by the town of Rutherglen and the Middle Ward of Lanarkshire, for the accommodation which is afforded to them by this bridge, and having fixed that, shall then divide equally the balance which remains between the town of Glasgow and the Lower Ward. That is the contention of the town of Glasgow. The Lower Ward of the county and the third and fourth parties, that is, Rutherglen and the Middle Ward, maintain on the other hand that when a bridge comes within the operation of the 88th section of the statute, it is competent for the Secretary of State, in dealing with the application which may be made to him for the fixing of the expense, to fix those proportions in any way that to him may seem just.
Now, the case substantially must be ruled by the 88th section, because there is no provision under the 37th section for burghs in the position of Rutherglen here, or Road Trustees in the position of the Middle Ward Trustees, because having no property in the bridge, they are to be called upon to pay for the accommodation that it is supposed to afford to them, and the expense they thereby incur in the maintenance and keeping up of that bridge. But after reading this 88th section with careful consideration, although it is attended with some little dubiety, I have come to the conclusion that the contention of the town of Glasgow is not well founded. When a bridge is situated as this is, and there are only two parties interested in it and so liable for its maintenance, there is no doubt that their respective liability is fixed equally between them by the express provision of the 37th section. But where in addition to the parties upon whose property the bridge is
Page: 638↓
Then the section goes on to provide for the case where the trustees do not agree. Under the first sub-section it is plain they may fix amongst themselves what proportions they like, but when they do not agree then they come under the operation of sub-section 2, which provides that “it shall be lawful for the county road clerk or clerk of supply of any county, or for the town-clerk or clerk of any burgh, to apply to the Secretary of State to determine that any bridge locally situated within a county or burgh, in respect of its accommodating other traffic than that of such county or burgh only, shall be deemed to belong in common to the county or counties and burgh or burghs to be named in his determination.” Now, the general power given to the Secretary of State by that second sub-section is that he shall declare that each particular one of these burghs or portions of counties has a common property in the bridge—that it shall belong in common to the county and the burgh. That is what he has power to do.
Then the machinery is provided by which that power is to be carried out; and that is done by the third and fourth sub-sections. Under the third, when an application is made to the Secretary of State, he is to appoint commissioners to report to him. And then the fourth sub-section provides—“If the commissioners are of opinion that the Secretary of State should determine that the burden of managing, maintaining, repairing, and if need be rebuilding the bridge mentioned in the application, and of paying the debt affecting or which may affect the same, should not be borne wholly by the county or burgh within which the same is locally situated, they shall prepare and transmit along witin their report the draft of the determination which they recommend that the Home Secretary should make, setting forth therein the proportions in which such burden should be borne by the county or counties, or part or parts, or district or districts, of such county or counties, and by the burgh or burghs, named in the determination.” Now, in the view I take of that fourth sub-section, following upon the words in which the general nature of the inquiry is said to be to ascertain the rights and the uses the respective parties make of the bridge,—its object being to enable the Secretary of State to decide upon the common property and use of the bridge,—it appears to me that the general words which are used in sub-section 4 put it in the power of the Secretary of State, by the directions he gives to these commissioners, to decide what the proportions are that each party, however numerous they may be, who come before him, is to bear in the expenses and the burden of that bridge. I cannot read these general words in any other sense. The contention on the part of the town of Glasgow implies the writing into the fourth subsection words which I do not find there, and for the use of which I think there is no authority, because what the town of Glasgow maintains is this, that the provision for adjoining counties and burghs in that section shall be read with these words introduced—“other than those whose liability is fixed by the local situation of the bridge.” Now, there are no such words to be found in sub-section 4 of section 88, but the contention of the town of Glasgow would involve the writing in of those words at the end of sub-section 4, instead of being in the general terms in which it now is. That is to say, taking the very words of their contention from the case, they would read in after the word “determination” the words “other than those whose liability is fixed by the local situation of the bridge.” That is just what the section does not contain, and it is the omission of any such special provision of that sort, keeping up what they maintain as the general provision of the 37th section, that makes me think that sub-section 4 is conclusive against the claim of the town of Glasgow in this case.
We were referred to the decision of the House of Lords in The Magistrates of Glasgow v. Police Commissioners of Hillhead, March 20, 1885, 12 R. 864; May 14, 1885, 23 S.L.R. 620; 11 App. Cas. 699, on this point, and though it was admitted that it did not rule this question, it was argued that some of the opinions of the Judges, particularly of Lord Herschel, pointed at a construction favourable to the town of Glasgow. I have looked carefully into this question, and taking the expressions precisely as they are used, they are obiter of this question, but the expression of Lord Herschel founded on was where his Lordship dealt with the 37th section, dealing with those cases where there were only two parties,—where equal liability had to be fixed. But that leaves open the question where four sets of parties enter into the case. I agree with his Lordship in thinking that that section is conclusive
Page: 639↓
There still remains the second question, as to management. If I am right on the first question, the Secretary of State will hold that this bridge is the common property, not of the town of Glasgow and the Lower Ward, but of the town of Glasgow, the Lower Ward, the Middle Ward, and the burgh of Rutherglen; and that being so, it appears to me that if they are jointly responsible in certain proportions for the expense of maintaining or rebuilding that bridge, it seems to follow as a necessary consequence that these new proprietors who are brought in shall have a say in the management of the bridge that they are to pay for, and therefore the Magistrates of Rutherglen and the trustees of the Middle Ward are entitled to be represented on the board of management of this bridge which is provided for by the earlier sections of this statute. As they are to have a considerable burden laid upon them, they are entitled to have a voice as to how the management expenses are to be applied, and I think we must answer the second question by saying that they are entitled to take part in the management, subject to the rules of the statute.
Now, that rule, which is limited to the case where the liability arises from the local situation of the bridge only, seems a very reasonable rule to be adopted in that general case. The statute might have provided that there should be commissioners in every case to determine whether there should be a measure of liability because one of these authorities took rather more use of the bridge than another; but one can very well see that it was a much more expedient and a much better plan in a case of that kind, where you had the marked feature of direct property in the bridge, that a somewhat rough-and-ready rule should be taken, and that the liability should be declared to be equal. When we come to the other set of provisions, which are intended to regulate not merely the case of traffic such as I have figured but the case of outside traffic—where counties that have no real property, or burghs that have no real property in a bridge are yet using it extensively, so extensively that it may be they are taking the chief use of it—when we come to deal with that, I think we have an entirely new set of provisions as to liability altogether; and there, I think, comes in the provision of the statute, that as there are different elements to be taken into view, the Secretary of State, with the benefit of a report by commissioners, shall settle the proportions in which the different contributors of traffic shall bear the expense of maintenance and management of the bridge. And the general view I take of section 88, which I think is entirely borne out by the decision in the case of the Hillhead Commissioners, is simply this, that while section 37 is intended for the class of bridges I have first referred to, so section 88 is intended to form in itself practically a code with reference to the bridges which are in this position, that outside counties or burghs are to be called upon to contribute.
Now, taking that to be so, I am entirely of the opinion which my brother Lord Mure has expressed, and I adopt entirely the observations which his Lordship has made. It appears to me that the contention of the parties to this case, other than the town of Glasgow, is sound, and that this arises upon several grounds, which may be gathered from the provisions of section 88. In the first place, it is of importance to notice that under sub-section 2 it becomes the duty of the Secretary of State, where there is an application made to him to determine that a bridge is accommodating other traffic than that of the county or burgh in which it is situated—it is his duty, in the order which he makes, to name in
Page: 640↓
I have only to add upon this part of the case that I think the view which Lord Mure has stated of the statute, and with which I concur, is very much borne out by sub-section 1 of section 88, which gives the whole of the different bodies in such a position as the present the power of making agreements, and, instead of resorting to the Secretary of State, of arranging amongst themselves to avoid the expense and delay in bringing the machinery of the other sub-sections into operation, and themselves arranging the proportions. I can see nothing to prevent any of these bodies from entering into an arrangement by which they may fix the amounts at any proportion they think fit, or bind themselves down to this, that the contributions of two of them shall stand in a certain proportion.
The only other question in the case is that which relates to management, and here undoubtedly we are confronted with the difficulty—I do not think it a serious or important one—that in section 88 we have no direct provision for management. On the other hand, we start with this, from section 88, that if, as in the present case, four different bodies are deemed to hold this bridge in common, and, in the next place, are to be obliged to contribute in certain proportions which may be fixed by the Secretary of State to the building and maintaining of the bridge, each of these parties should have a voice in the management:
Page: 641↓
I am therefore of opinion with Lord Mure that we should answer the questions as his Lordship proposes.
But then we have here an application, and what is admittedly a competent application, to bring this bridge under section 88 of the statute. It cannot be disputed, after the decision in the Hillhead case, that this bridge is one to which the provisions of section 88 apply, because it was held in that case that although a bridge may be locally situated in more than one county or burgh, in two or it may be three, in such a case it nevertheless falls within the 88th section provided it accommodates what was called in the Hillhead case outside traffic. Now, it will be observed that section 88 for the first time introduced what I think was an entirely new element into the matter, because it introduced for the first time a liability on the part of other parties, burghs or counties in which the bridge was not locally situated, to contribute to the expense of maintaining such a bridge; and that introduced an entirely new set of circumstances, as it appears to me, from any that existed before. Now, the Legislature has thought that in such circumstances, where in point of fact a bridge, although locally situated, it might be in one district or it might be in two districts, did in point of fact afford accommodation to outside districts,—that is to say, to districts in which it was not locally situated,—in such cases the outside authorities should contribute to the expense of the bridge. That might have been done very simply by leaving the property of the bridge in the single proprietor as it was before, or in the joint proprietors as it was before, and merely calling upon the outside parties to contribute by way of toll, or money, or otherwise, to the support of that bridge. That would have been a simple way, and if the Legislature had adopted that way, as the City of Glasgow thinks, then it would undoubtedly have left the mutual liabilites as between the first and second parties here undisturbed. But then it was liable to this objection—and we see from this case that it was a serious objection—that it would have left these outside parties to contribute, it might be, large sums of money over the expenditure of which they would in that view have no control, and that that might be a heavy burden we see from this case, because we are told in the case that this very bridge over the Clyde at Glasgow requires to be immediately rebuilt, and I suppose it will not be rebuilt for any small sum of money; and if, as the City of Glasgow maintain, all that the outside authorities have to do is to contribute to the expense, they would have been called upon to contribute large sums of money without having any control or say in the disposal of it.
Page: 642↓
Now, that being so, it does not appear to me that that is the mode which the Act has adopted to meet the case. I think the mode which the Act has adopted to meet the case is this: Instead of leaving the bridge as being the property of the one or two proprietors as it was before, the Act has declared that this bridge shall be deemed common property to all those who are bound by the Act to contribute to its support. I think that is very clearly the mode which the Act has adopted to meet the circumstances. It has declared that the bridge in future shall belong in common to all the parties who contribute to it, and as the amount of traffic passing over that bridge might not be equal in all the four cases, it has been left to the Secretary of State in express words to determine the proportion in which each proprietor shall contribute to the expense of the bridge. Now, I think that depends, as Lord Mure has pointed out, upon the construction particularly of the 2d and 4th sub-sections of the 88th section. By the 2d sub-section the clerk to the county or burgh authority is to apply to the Secretary of State to determine that any such bridge shall belong in common to the county or counties and burgh or burghs to be named in his determination. I think it is beyond doubt that if the Secretary of State is so to determine, he must name in his determination all the authorities of the county or counties and burgh or burghs who contribute to the maintenance of the bridge, or are to be liable for it. I cannot understand his omitting from the declaration as to the common proprietors the name of any one of the four. Well, if the Secretary of State on considering the matter thinks that outside counties or burghs are bound to contribute, what he is to do is set forth in subsection 4. He is to determine “the proportions in which any such burden”—that is, the burden of maintaining, repairing, and if need be rebuilding the bridge—“should be borne by the county or counties, or part or parts, or district or districts, of such county or counties, and by the burgh or burghs named in the determination.” Now, what are the county or counties or burgh or burghs named in the determination if they are not those, and those only, and all of those who the Secretary of State considers are bound to contribute. Well, then, if the effect of that is to declare—and I think it is to declare—that the bridge which was previously the property of one burgh or county in which it might be locally situated, or of the burgh and county, as in this case, in which it might be locally situated, is to be no longer their property, but is to become the common property of all the contributors, then, if that be so—and I think it is so by the Act—I think that leads to the solution of the second question here, because if this bridge is to belong in future to all the four as their common property, it appears to me that there is no difference in the quality of the rights of these four. They are all proprietors. It is not that two of them are proprietors, and two contributors. The Act does not point at that at all. I cannot see how, if it belongs in common property to them all, you can say they have not all equal rights over it, unless there shall be something in the statute saying they shall not have equal rights. But there is nothing to that effect in the statute. I think it is clear upon the statute that they are all four common owners, and not that two of them are owners and two of them merely contributors as is the view of the City of Glasgow. Now, if that be the position of matters, and if they are all common owners, then I think it follows that no one of these common proprietors or common owners has more right than another to the exclusive management of the bridge. If they are all common owners, why should one or two have the exclusive management and the others not? I think that follows as a consequence if the first proposition be right—I mean always apart from something in the Act to the contrary, and I think there is nothing in the Act. Well, if they are all entitled, and as I think necessarily entitled, to the management of this bridge, I think it follows they are entitled to appoint representatives, and though it is quite true that in section 88 there are no special provisions as to a joint committee, you will observe that difficulty or presumed difficulty might have arisen, quite as much as if we were dealing with a bridge only situated in one county or one burgh; I mean there is no special provision in the section itself as to the extent to which each of them shall send members to any joint committee of management. But I think that is a difficulty which, as Lord Shand says, we ought to get over by going back to see what the rights of the joint committee are under this Act, where a joint committee is necessary and is provided for; and accordingly, on the whole matter, I agree with Lord Mure that the first alternative of the first question should be answered in the affirmative, and that the second question should be answered in the affirmative also.
Page: 643↓
The result will be to answer the first alternative of the first question in the affirmative, and the second question in the affirmative.
The Court pronounced this interlocutor:—
“Find and declare that the Secretary of State has power under the Roads and Bridges (Scotland) Act 1878 to determine, if he sees fit, that Dalmarnock Bridge shall be deemed to belong in common to the county of the Lower Ward of Lanark, the City of Glasgow, the County of the Middle Ward of Lanark, and the Burgh of Rutherglen, and to apportion among them in his determination, in such way as he thinks right, the expense of managing, maintaining, repairing, and if need be rebuilding said bridge, and the County of the Middle Ward of Lanark and the Burgh of Rutherglen are entitled to take part in the management of said bridge, and to appoint representatives on the Joint Bridge Committee thereof, and decern: Find the second party liable in expenses to the first and third parties,” &c.
Counsel for the First Parties— D.-F. Mackintosh— Jameson. Agents— Mackenzie & Black, W.S.
Counsel for the Second Parties— Balfour, Q.C.— Ure. Agents— Campbell & Smith, S.S.C.
Counsel for the Third Parties— D.-F. Mackintosh— Dykes. Agents— Bruce & Kerr, W. S.
Counsel for the Fourth Parties— Davidson. Agents— Mackenzie & Black, W.S.
