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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Magistrates of the Burgh of Barony of Kirkintilloch v. Town Council of Kirkintilloch [1908] ScotLR 99 (28 October 1908) URL: http://www.bailii.org/scot/cases/ScotCS/1908/46SLR0099.html Cite as: [1908] ScotLR 99, [1908] SLR 99 |
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Page: 99↓
An ancient burgh of barony adopted the General Police and Improvement (Scotland) Act of 1862, and appointed Police Commssioners, who in 1892 became, under the Burgh Police (Scotland) Act of that year, the Police Commissioners of the burgh, and thereafter, by virtue of the Town Councils (Scotland) Act 1900, the Town Council of the burgh.
In a special case between the magistrates of the burgh of barony and the town council, relating to the property of the old burgh of barony, held (1) that as the magistrates elected under the set of the burgh had been swept away by the statutes of 1892 and 1900, the magistrates elected under these statutes were now the only municipal authorities, and that, accordingly, the property fell to be held and administered by them; (2) that it was no longer competent for any magistrates and councillors to be elected or hold office in the burgh otherwise than under and in accordance with the provisions of the Town Councils (Scotland) Act 1900; and (3) that the question whether the property was to be administered for behoof of those resident within the area of the burgh of barony, or within that of the municipal burgh, could not, in the absence of proper contradictors, be determined.
Commissioners of Blairgowrie, November 5, 1901, 4 F. 72, 39 S.L.R. 67, followed.
The General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. cap. 101), enacts—section 22—“Not with standing anything in this Act in the contrary implied or expressed, and whether this clause be adopted by any burgh or not, it is hereby enacted that in all cases where the management of the police affairs of any burgh is transferred from any existing commissioners of police or other persons to the magistrates and council of such burgh, or to commissioners elected under this Act, the whole lands, heritages, assessments, claims, demands, and effects of every kind belonging to or vested in the commissioners of police or other persons from whom such management is so transferred, or in any person on their behalf, and all powers, rights, and privileges conferred on or
Page: 100↓
vested in such commissioners of police or other persons by any Act of Parliament, in so far as not inconsistent with the provisions of this Act, shall be and are hereby transferred to and vested in the magistrates and council or commissioners to whom such management is so transferred, who shall be liable for the whole debts and obligations of the commissioners of police, or other persons from whom such management is transferred; and in all cases where this Act shall be adopted in whole or in part, such adoption shall not free or relieve the magistrates and council or commissioners of police of any burgh from any obligations incumbent on them at the date of such adoption; and all such obligations, together with the powers of assessment and other faculties therewith connected, shall remain in full force as if this Act had not been adopted.” Section 35—“If such resolution ( i.e., as provided for in the Act) shall be to adopt this Act in whole, any General or Local Police Act in operation within such burgh shall be repealed,…”
The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), enacts—section 20—“In all cases where the management for the purposes of this Act of any burgh is by the application of this Act transferred from any existing commissioners of police or other persons acting under any of the general Police Acts or any local Police Act to commissioners under this Act, the whole lands, heritages, assessments, claims, demands, and effects of every kind belonging to or vested in the commissioners of police, or other persons from whom such management is so transferred, or in any person on their behalf, and all powers, rights, and privileges conferred on or vested in such commissioners of police or other persons by any Act of Parliament, charter, or writing, in so far as not inconsistent with the provisions of this Act, shall be, and are hereby transferred to and vested in the commissioners under this Act, and they shall be liable for the whole debts and obligations of the commissioners of police, or other persons from whom such management is transferred. And where by any Act of Parliament any powers and duties are conferred or imposed upon the commissioners under the General Police Acts, such powers and duties shall now be vested in and discharged by the commissioners under this Act.”
Section 27, sub-section (2)—“Nothing contained in this Act shall affect the patrimonial rights of any body of feuars at the passing of this Act administered by the town council of any burgh or barony.”
The Town Councils (Scotland) Act 1900 (63 and 64 Vict. c. 49), enacts—sec. 8—“In any burgh the whole rights, powers, authorities, duties, liabilities, debts, officers and servants ( a) of commissioners under the Burgh Police (Scotland) Act 1892,… and the whole lands, works, and other assets vested in them respectively, shall, in so far as this has not already been effected, be transferred to, imposed on, and vested in the town council.…”
Section 33—“The existing town council or commissioners and magistrates of every burgh shall be the town council and magistrates under this Act, and the existing commissioners of a police burgh shall individually be the councillors thereof, but their retirement and the filling up of vacancies shall be regulated by this Act.”
On March 19, 1908, the Magistrates and Town Council of the Burgh of Barony of Kirkintilloch, first parties, and the Provost, Magistrates, and Councillors of the Burgh of Kirkintilloch, second parties, presented a special case for the determination of certain questions relating to the property of the old burgh of barony of Kirkintilloch.
The following narrative is taken from the opinion of the Lord President—“The Burgh of Kirkintilloch was erected into a burgh of barony under an ancient charter which is no longer extant, but the terms of which may be gathered from the charter in 1670, by which William, Earl of Wigtown, granted the lands therein specified to certain burgesses and provided for the set of the burgh. For many years thereafter the affairs of the burgh of barony were attended to by the magistrates elected under the provisions of that set. It seems to be the case that some of the lands disponed passed in private property to certain of the burgesses, but a portion has survived as a sort of public fund, namely, a town hall and other subjects of the annual value of £89, certain casualties, and some small pieces of ground. The present case is brought with reference to this property, the first parties being a body styling themselves the Magistrates and Town Council of the Burgh of Barony of Kirkintilloch, and the second parties the Municipal Authorities of the Burgh of Kirkintilloch under the Burgh Police Acts.”
The questions of law were—“(1) Are the first parties entitled to continue to hold and administer the property vested in them as the bailies and councillors elected under the charters of the burgh of barony of Kirkintilloch? or Does the said property fall to be held and administered by the second parties? (2) In the event of the second alternative of the foregoing question being answered in the affirmative, does the said property fall to be held and administered by the second parties for behoof of the area embraced within the burgh of barony? or Does the said property fall to be held and administered by the second parties for behoof only of the area of the burgh of barony embraced within the municipal burgh? (3) Is it competent for any magistrates and councillors in future to continue to hold office or to be elected under the said charters of the burgh of barony of Kirkintilloch? or, Have the first parties been superseded to all intents and purposes by the second parties, and is it no longer competent for any magistrates and councillors to be elected or hold office in the burgh of Kirkintilloch otherwise than under and in accordance with the provisions of the Town Councils (Scotland) Act 1900?”
The first parties maintained that the said property had not been transferred to the
Page: 101↓
second parties by the operation of statute, that it still remained vested in them, and that accordingly they were entitled to continue to hold and administer it. The second parties, on the other hand, maintained that under the Burghs Police (Scotland) Act 1833 (3 and 4 Will. IV, c. 46), the General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. c. 101), the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. c. 55), and the Town Councils (Scotland) Act 1900 (63 and 64 Vict. c. 49), they constituted the Town Council of the burgh of Kirkintilloch in the sense of the Town Councils (Scotland) Act 1900, and that as such they had superseded the Town Council elected under the charters of the burgh of barony of Kirkintilloch; that they were vested in and entitled to administer for behoof of the municipal burgh of Kirkintilloch the whole funds and property under the charge of the first parties as the Town Council of the burgh of barony under the said charters, and that it was not competent in future for any town council to be elected under the foresaid charters or otherwise than in accordance with the Town Councils (Scotland) Act 1900. Argued for the first parties—The property of the burgh of barony was not transferred under the Burghs Police Act 1833 (3 and 4 Will. IV, cap. 46) when it was adopted in 1836. That Act only gave the Magistrates acting under the Act jurisdiction within a prescribed area, but it did not transfer the property. That remained in the bailies of the burgh of barony. The subsequent Acts of 1862, 1892, and 1900 ( cit. supra) dealt only with the property vested in the then existing Commissioners of Police, and did not affect the property held by the officials of the old burgh of barony. Esto that the Act of 1900 had adopted the definition of burgh contained in the Act of 1892 which included burgh of barony, it did not wipe out the old burgh of barony or its bailies. Both were still in existence. Reference was made to Commissioners of Blairgowrie, November 5, 1901, 4 F. 72, 39 S.L.R. 67, and Burgh of Leslie v. Archibald and Others, March 4, 1904, 41 S.L.R. 482.
Counsel for the second parties were not called on.
The second question put to the Court is—“In the event of the second alternative of the foregoing question being answered in the affirmative, does the said property fall to be held and administered by the second parties for behoof of the area embraced within the burgh of barony, or does the said property fall to be held and administered by the second parties for behoof only of the area of the burgh of barony embraced within the municipal burgh?” I do not think it is possible for us to answer this question, seeing that there are no proper contradictors before us. The effect of substituting the new body of magistrates for the old is that the former hold and administer the property as the municipal authority. It may be, however, that the older body held property as trustees for private persons, and if this be so, then the rights of these persons are saved under sec. 27 of the Act of 1892. But the remedy in case of infringement of these rights must be sought in the manner provided by that section, and questions of private right cannot be determined in this special case.
Apart from these questions of private right there might be questions of a public nature as to the administration of property within the boundaries of the older burgh, as, for example, in the case of a burgess resident within the area of the older burgh but outside the area of the newer municipality being refused admittance to the public hall. I cannot conceive of such a case actually arising. But in any event such a question could be determined only if someone came forward stating that he would be injured by what the Council proposed to do; and there is nothing of this kind in the present case.
The third question goes with the first question.
Page: 102↓
The Court answered the second alternative of the first question in the affirmative, and the second alternative of the third question in the affirmative; refused to answer the second question in either of its alternatives; and decerned.
Counsel for First Parties— Horne. Agents— Webster, Will, & Company, S.S.C.
Counsel for Second Parties— Wilson, K.C.— Chree. Agents— Patrick & James, S.S.C.
