Glasgow Corporation v Glasgow Churches' Council
| Jurisdiction | Scotland |
| Judgment Date | 27 January 1944 |
| Date | 27 January 1944 |
| Docket Number | No. 10. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Patrick.
StatuteBye-lawConfirmationSheriffSheriff as confirming authorityFunction of SheriffAdministrative or judicialSheriff-substituteBurghGlasgow Public Parks Act, 1878 (41 and 42 Vict. cap. lx), secs. 3 and 38Glasgow Corporation and Police Act, 1895 (58 and 59 Vict. cap. cxliii), sec. 23.
Under the Glasgow Public Parks Act, 1878, sec. 38, and the Glasgow Corporation and Police Act, 1895, sec. 23, the Corporation have power to make bye-laws regulating recreation in the public parks, provided that no bye-law shall come into operation until confirmed by the "Sheriff," defined in sec. 3 of the Act of 1878 as meaning "the Sheriff of the county of Lanark or any of his substitutes."
The Sheriff of the county having refused to confirm an amended bye-law permitting the playing of the game of bowls in the public parks on Sunday, the Corporation brought an action in the Court of Session for reduction of his interlocutor on the ground that it was ultra vires and in excess of his jurisdiction. The pursuers contended,inter alia, that, whereas the Sheriff's function was limited to determining whether the bye-law was legally valid and unchallengeable in a Court of law, he had refused confirmation on considerations of policy and expediency.
The Court dismissed the action, holding that it was the function of the Sheriff, as of other confirming authorities under other statutes, to determine whether what was proposed was reasonable and expedient in the circumstances, and that the fact that confirmation might be granted or refused by a Sheriff-substitute did not, as the pursuers had contended, limit this discretionary power.
Observations upon the offices of Sheriff and Sheriff-substitute.
The Corporation of the City of Glasgow brought an action against (first) the Glasgow Churches' Council and others and (second) Sir Archibald Campbell Black, O.B.E., K.C., Sheriff of Lanarkshire, concluding for production and reduction of an interlocutor pronounced by the second defender on 2nd February 1943, whereby he refused to confirm a bye-law made by the pursuers on 20th August 1942.1
Defences were lodged by the first-named defenders.
The averments of parties, after a narrative of the statutory provisions, were as follows:(Cond. 9) "Bye-law No. 27 of the bye-laws for the management and regulation of the public parks, &c., made by the pursuers on 13th April 1916, and confirmed by the Sheriff of Lanarkshire on 20th June 1916, the Sheriff of Renfrew and Bute on 22nd June 1916, and the Sheriff of Stirling, Dumbarton and Clackmannan on 27th June 1916, is in the following terms, namely:No person shall, in any of the parks, play at any game, or take part in any sport, race or gymnastics, or other recreation or amusement except on such places, if any, as may from time to time be by the Corporation or the superintendent set apart by notice for that purpose, and then only at the time or times prescribed by and in conformity with the rules, regulations and notices applicable to such games, sports, races, gymnastics, recreations or amusements. No person shall play at any game in the parks on Sunday." (Ans. 9) "The bye-law is referred to." (Cond. 10) "On 5th March 1936 the pursuers approved of an amendment of the said bye-law No. 27 so as to permit the playing of golf on the public golf courses on Sunday. This amendment was confirmed by the Sheriff of Lanarkshire on 31st July 1936. On 6th June 1940 the pursuers approved of a further amendment to the said bye-law No. 27 so as also to permit the playing of tennis on the public tennis courts on Sunday. This amendment was duly confirmed by the Sheriff of Lanarkshire on 20th March 1941." (Ans. 10) "The amendment is referred to." (Cond. 11) "On 20th August 1942 the pursuers made the following bye-law further amending the said bye-law No. 27, namely:Bye-law No. 27 shall be read and have effect as if for the words "No person shall play at any game (except the game of golf on the public golf courses and the game of tennis on the public tennis courts) in the parks on Sunday" occurring therein there were substituted the words "No person shall play at any game (except the game of golf on the public golf courses and the game of tennis on the public tennis courts and the game of bowls on the public bowling greens) in the parks on Sunday."" (Ans. 11) "Admitted." (Cond. 12) "The pursuers gave due
notice by advertisement of the making of the said bye-law" judge=" and of their intention to apply for confirmation of it, and of the right of anyone to object thereto. They duly carried out the whole statutory procedure necessary to enable them to secure confirmation of the said bye-law. The defenders are called upon to state what additional step in procedure they now allege should have been taken." (Ans. 12) "Admitted that due advertisement was made of pursuers' intention to apply for confirmation of the bye-law. Quoad ultradenied." (Cond. 13) "On 4th October 1942 the pursuers presented to the said Sheriff a petition for the confirmation of the said bye-law. Objections to the petition were lodged by the first-named defenders, and answers to the objections were lodged by the pursuers. A copy of the said petition, objections and answers is produced herewith and referred to." (Ans. 13) "Admitted." (Cond. 14) "By interlocutor dated 23rd November 1942 the said Sheriff allowed a proof upon the said petition, objections and answers, and the proof was held before him on 18th and 19th January 1943." (Ans. 14) "Admitted." (Cond. 15) "On 2nd February 1943 the said Sheriff pronounced the following interlocutor: Glasgow, 2nd February 1943. The Sheriff Refuses to confirm the said bye-law No. 27 as amended. (Sgd.) A. C. Black. A copy of the said interlocutor and relative note by the Sheriff is produced herewith and referred to." (Ans. 15) "Admitted." (Cond. 16) "The pursuers submit that the refusal of the said Sheriff to confirm the said bye-law No. 27 proceeded upon grounds which were in excess of the jurisdiction and ultra vires of the Sheriff, as confirming authority, and that his purported refusal is consequently null and void." (Ans. 16) "Denied that the refusal of the said Sheriff to confirm the bye-law was ultra vires or that it is null and void." (Cond. 17) "As appears from the said note of the Sheriff, he has decided the matter on questions which did not arise in the said petition, objections and answers. Moreover, he has proceeded upon the view, notwithstanding the contention before him of the petitioners, that it was within his jurisdiction to consider and adjudicate upon the grounds on which he held the amendment to have been made. No suggestion of bad faith was at any time put forward by the present defenders, and the petitioners submit that the question of the grounds for and expediency of the passing of the amendment is a question of policy for the local authority and not for the Sheriff as a mere confirming authority; and that his decision is consequently ultra vires and void. It is the fact that, and there was evidence before him to the effect that, regular players of bowls had asked for and did want additional facilities for bowls on Sundays. The exacting overtime work in Glasgow and the consequent inability of many to indulge in bowls on Saturday afternoon during war-time makes it imperative that facilities for play on Sunday should, if at all possible, be made available. The defenders' averments so far as not coinciding herewith are denied, under reference to the note of the Sheriff for its terms." (Ans. 17) "The note of the Sheriff is referred to. The Sheriff considered, as he was entitled to consider, the objections to the proposal of the pursuers. He came to the conclusion, as he was entitled to do, that the amendment should not be confirmed. Quoad ultra denied so far as not coinciding herewith." (Cond. 18) "In these circumstances, the pursuers submit that they are entitled to have the said interlocutor of 2nd February 1943 reduced as being in excess of the jurisdiction of the said Sheriff, and ultra vires. This action of reduction has therefore been rendered necessary." (Ans. 18) "Denied that the action is necessary."
The pursuers pleaded:"(1) The second-named defender having acted in excess of his jurisdiction in refusing to confirm the said bye-law as condescended on, the pursuers are entitled to decree of reduction of the said interlocutor of 2nd February 1943 in terms of the conclusions of the summons. (2) The second defender having actedultra vires in pronouncing said interlocutor, decree should be granted as concluded for. (3) The defences being irrelevant should be repelled, and decree of reduction granted de plano in terms of the conclusions of the summons."
The defenders pleaded, inter alia:"(1) The pursuers' averments being irrelevant to support the conclusions of the action, decree of reduction should not be pronounced. (2) The pursuers having no interest to insist in the conclusions of the summons, the action should be dismissed. (3) The action, being unnecessary, should be dismissed. (4) The Sheriff having jurisdiction to pronounce the interlocutor under reduction, and having done so lawfully, decree should be refused."
On 5th November 1943, the Lord Ordinary (Patrick), after hearing parties in the Procedure Roll, inter alia, sustained the first plea in law for the defenders and dismissed the action.
At advising on 27th January 1944,
LORD MACKAY.The jurisdiction which we are invited to exercise here is a common law jurisdiction, to reduce a writing. The writing, as it happens, takes the form of a written interlocutor by which the Sheriff-depute of Lanarkshire, expressed his refusal to confirm a certain bye-law which the reclaimers, the Glasgow Corporation, affirmed that they had passed ("made" is the statutory word) of date 20th August 1942. The acting of the Sheriff which they challenge is in essence...
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