Graham v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1935 |
| Date | 22 November 1935 |
| Docket Number | No. 8. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Ld. Carmont.
BurghMagistrates and town councilPowersResolution by council to manufacture stationery, &c., for their own requirementsWhether council entitled to charge cost of manufacture either upon the rates or upon the common good.
Circumstances in which held that, where there was no express or implied statutory prohibition, the magistrates of a royal burgh had power to manufacture, instead of purchasing, their whole stationery requirements, and to undertake their own printing and bookbinding, and to charge the cost either (a) upon the rates as being reasonably incidental to the carrying out of their various statutory duties, or (b) upon the common good as being an expenditure within their discretion.
Observed that, since the power to manufacture, &c., was confined to the supply of the burgh's own needs and did not involve trading with the public, there could be no question of unfair competition with the trading community.
BurghMagistrates and town councilExercise of statutory powersRoyal burghWhether royal burghs have wider powers of exercise than police burghs.
Doubted, per the Lord Justice-Clerk and Lord Anderson, whether, in carrying out statutory purposes, a royal burgh had wider powers than a police burgh or any other statutory corporation.
BurghEducationBurgh as education authorityPower to provide school requisites, &c.Whether burgh entitled to manufacture, instead of purchasing, school requisites, &c.Ultra viresEducation (Scotland) Act, 1908 (8 Edw. VII, cap. 63), sec. 3, as amended by the Local Government (Scotland) Act, 1929 (19 and 20 Geo. V, cap. 25).
The Education (Scotland) Act, 1908 (as amended by the Local Government (Scotland) Act, 1929), by sec. 3 (6), empowers education authorities to expend money in "providing" pupils at state-aided schools with school books, writing materials, stationery and other articles of a similar nature, and authorises the defraying of such expenditure out of the education fund. The Act of 1929 enacts, by sec. 3 (2), that any deficiency in the education fund shall be defrayed out of a rate to be levied for that purpose.
The magistrates and town council of a burgh passed a resolution to establish a department to manufacture and provide exercise books and other school requisites of the education authority. A ratepayer having challenged the resolution as being ultra vires of a purely administrative body such as a municipal corporation,
Held (diss. Lord Hunter), on a construction of sec. 3 (6) of the Education (Scotland) Act, 1908, that the power therein conferred for "providing" writing materials, stationery, and other articles of a similar nature, included a power to manufacture exercise books and other school requisites, and that, accordingly, the resolution was intra vires of the council.
Observed by Lord Anderson, that the resolution did not infer a power to publish school books, and that, if it had inferred such a power, it would have been ultra vires.
On 10th January 1935 Robert Pinkerton Graham, a ratepayer of the City of Glasgow, presented to the Court of Session a petition for suspension and interdict against the Corporation of the City of Glasgow, in which he craved the Court to suspend a resolution passed by the respondents on 20th December 1934, and to interdict them from carrying the resolution into effect.
The petition and answers set forth:(Stat. 1) "The petitioner is Robert Pinkerton Graham, residing at 33 Cranworth Street, Glasgow, and is a ratepayer of the City of Glasgow. The respondents are the Corporation of the City of Glasgow." (Stat. 2) "The petitioner is under the necessity of applying to your Lordships for decree of suspension and interdict against the respondents in the circumstances aftermentioned." (Stat. 3) "On 1st February 1934 notice was given of a motion to be brought before the respondents' Town Council for consideration. The terms of the proposed motion were as follows:That a Department be established which would manufacture, provide and supply all the account books, loose-leaf sheets, registers and all such manufactured stationery requirements of the Corporation and its several departments, also undertake all printing, bookbinding and blue print work required by the Corporation or its Committees, including the manufacture and provision of exercise books and the other school requisites of the Education Department, and the bookbinding work of the Libraries Department, and that it be remitted to the Special Committee on the Purchase and Supply of Stationery, &c., to give effect to the foregoing." (Stat. 4) "The said motion came up for consideration by the Town Council at a special meeting held on 20th December 1934. The motion was moved by Councillor Stewart Reid, and seconded by Mr Heenan. An amendment was moved by Bailie Gray, and seconded by Mr Young, that the matter contained in the notice of motion be remitted to a special committee. After discussion a roll-call vote was taken, and there voted for the motion forty-eight and for the amendment thirty. The Lord Provost thereupon declared the motion carried." (Stat. 5) "The project covered by the said resolution is ultra vires of the respondents. They have no statutory or other warrant for establishing a department of the proposed type, or for conferring on it the powers purported to be conferred, or for applying the funds in their hands or under their control in financing it. They illegally and unwarrantably propose to apply the money raised, or to be raised, from the rates exacted from the petitioner and other ratepayers in the city for the establishment of the said department and the carrying on of the various activities set forth in the resolution of 20th December 1934. It is believed and averred that the execution of the project will involve an initial expenditure on buildings and plant of over 200,000. With regard to the explanations in answer, it is admitted that the Burgh of Glasgow is a Royal Burgh, and that the respondents administer the common good fund of the burgh. Believed to be true that the respondents have created a number of principal departments, and that there are a number of subsidiary departments. The statutes mentioned are referred to for their terms. Admitted that under the said statutes the respondents are charged with certain functions of local government within the City of Glasgow, and that they are also the Education Authority for the city. Believed to be true that in discharge of their statutory duties they require to purchase quantities of stationery, and that they expend certain sums on printing. Believed to be true that they have in operation a bookbindery, and that they make use of a large number of typewriters and reproducing machines of various kinds, which are operated by their employees and officials. The figures of annual expenditure are not known and not admitted. Quoad ultra denied. The respondents are called upon to state in what way, and to what extent, economy will be effected by establishing the proposed department. Explained that typewriting and duplicating are, and can be, carried on in departments and offices as part of the usual routine. The respondents in proposing to create a department for the manufacture of stationery and printing are making a new department in their municipal policy unprecedented in Scotland. Both these operations involve expensive plant, technical processes and skilled operatives. It will be necessary to set up separate establishments of various types of skilled workers, most, if not all, of whom have served an apprenticeship at their various trades. The premises in which the various operations will be carried on will be subject to the provisions of the Factory Acts." (Ans. 5) " Explained that the project covered by the said motion is intra vires of the respondents. The said project relates to work incidental to the performance by the respondents of their statutory and other duties, and does not involve any improper or illegal use of funds controlled by them. The purposes to which the said project relates and the expenses connected therewith are incidental to, and consequential upon, the respondents' discharge of their statutory and other duties and functions, and any such expenses are properly defrayable from monies available to the respondents, including monies raised from the rates levied by the respondents. Explained that it is provided by section 8, subsection (1) of the Glasgow Corporation and Police Act, 1895, that, for the purposes of the Police Acts, the Parks Acts, the Improvements Acts, the Gas Acts, the Markets Acts, the Tramways Acts or for any other purposes of the Corporation, the Corporation may from time to time create such and so many Departments with such designations, powers, officers and servants as they deem expedient. The respondents have created twelve principal departments for the performance of their statutory duties, and within these twelve principal departments there are a large number of subsidiary departments. Further, by the terms of section 6 of the Glasgow Police Act, 1866, the respondents are empowered to do all other things necessary for fully and efficiently executing this Act. Under the said Act and Acts amending the same and authorised to be cited as the Glasgow Police Acts, 1866 to 1934, the respondents are given wider powers for the enforcement of public order within the City of Glasgow, and are in addition charged with the performance of numerous duties relative to the administration of the revenues raised by assessment; the preservation of public health; the policing of the city; and the formation, improvement and maintenance of public streets, and the erection and regulation of buildings. The respondents, under the provisions of numerous statutes, are charged with the whole functions of local government within the City of Glasgow, and are also the Education Authority for the City. They also, under statutory...
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