Campbell v Leith Police Commissioners. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 29 June 1865 |
| Date | 29 June 1865 |
| Docket Number | No. 191 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ormidale. R.
Stat. 25 and 26 Vict. c. 101—11 and 12 Vict. c. 123.—
THIS was a note of suspension and interdict at the instance of John Archibald Campbell, C.S., against the Leith Police Commissioners, for the purpose of having the respondents prohibited from interfering in any way with the street in North Leith called Prince Regent Street, or with the piece of ground there belonging to the complainer.
The complainer averred that he was proprietor in trust of a piece of ground in North Leith, upon a portion of which Prince Regent Street had been formed, and that upon both sides of the street one or two buildings had been erected on areas of ground feued out by the complainer; that the remainder of this piece of ground was open and unenclosed; that it had been contemplated to continue Prince Regent Street through this piece of ground, but that, in fact, no road had ever been laid out, and that, on the contrary, posts had been so placed in the ground as to prevent the centre space from being converted into a road or thoroughfare, or used as such.
On 11th June 1863 the respondents, acting under the General Police and Improvement Act, 1862, 25 and 26 Vict. c. 101, which they had adopted in whole in October 1862, resolved to cause Prince Regent Street, as being in their opinion a private street as defined by the Act, to be freed from obstructions, and paved or causewayed according to a plan prepared by the surveyor of streets and buildings; and the clerk was directed to give the statutory notice, in terms of this Act, with reference thereto. Notice was accordingly prepared, and posted in Regent Street, in terms of section 394.
The complainer denied the right of the respondents to proceed under the General Police Act, 1862, contending that the statute regulating the police of Leith at the time when the respondents passed the resolution now complained of, to pave Prince Regent Street, was the ‘Leith Municipal and Police Act, 1848.’ By this Act, he averred, the duty of paving Prince Regent Street was imposed upon the Magistrates and Town Council of Leith, as Commissioners of Police under the statute, and no farther liability relating thereto remained with the proprietors of the ground or houses in or adjoining to the street. This Act (1848), he averred, continued in operation for some time after the adoption by the respondents of the General Act of 1862:—‘In particular, the provisions aftermentioned continued in operation; and a petition having been presented to Sir George Grey, one of her Majesty's Principal Secretaries of State, under the 79th section of the General Police Act, praying for repeal and alteration of certain portions of the said Local Act, he, under the provisions of the said General Police Act, 1862, made a provisional order repealing, from and after the passing of any Act of Parliament confirming said order, inter alia, the sections of the Local Act above quoted and referred to, which order was afterwards confirmed by the Act of Parliament 26th and 27th Victoria, chap. 60, passed on 2lst July last, 1863, giving effect to said provisional order from and after the passing of said confirming Act, but not before.’
Section 18 of the Act is as follows:—‘18. If the said magistrates and council or commissioners or trustees of police adopt this Act in whole, any General or Local Police Act in operation within such burgh shall be repealed, excepting in so far as it may relate to matters not provided for in this Act; and if they resolve to adopt this Act in part, such resolution shall specify the parts, sections, or clauses so adopted; and no part of this Act which is not so specified shall be held to be adopted, except as much thereof as is requisite for giving due effect to, or as in any way modifies, affects, or controls the parts, sections, or clauses so adopted, to which extent this Act shall be held to be as effective as if the whole had been adopted according to the true intent and meaning of this Act; and any such General or Local Act in operation within such burgh shall remain in force in so far as not inconsistent with the parts, sections, or clauses so adopted.’
Section 79 of the Act is as follows:—‘79. Whenever it appears desirable to the magistrates and council or commissioners of police of any royal or parliamentry burgh, or to the commissioners for executing this Act in any burgh or populous place, that provision should be made in order the better to apply and execute therein the provisions of this Act, in whole or in part, or for the future application and execution of any Acts in force therein having relation to the purposes of this Act, or to the roads or streets within such burgh or populous place, or to any other matter or thing connected with the management and administration of the municipal or police affairs of such burgh or populous place, or that...
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Glasgow Corporation v McOmish
...from the owner.’ 1 Cadder Local Authority v. Lang, July 11, 1879, 6 R. 1242. 2 Campbell v. Leith Police Commissioners, June 29, 1865, 3 Macph. 1035, Feb. 28, 1870, 8 Macph. (H. L.) 31; Magistrates of Edinburgh v. Paterson, Dec. 3, 1880, 8 R. 197; Campbell v. Magistrates of Edinburgh, Nov. 2......