Henry Bruce & Sons v Muir
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1943 |
| Docket Number | No. 5. |
| Date | 12 November 1943 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Ld. Jamieson.
Public Health—Sewer—Damage to sewer by discharge of mill effluent—Paper mill on Water of Leith—Prosecution or arbitration—Summary Procedure—Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926 (16 and 17 Geo. V, cap. lxv), secs. 155 and 189—Water of Leith Purification and Sewerage Act, 1889 (52 and 53 Vict. cap. cvi), sec. 62.
The Water of Leith Purification and Sewerage Act, 1889, which authorised the construction of a main sewer into which effluents from various mills should pass before reaching the stream, provided by section 62 that any dispute between the Commissioners appointed to administer the Act and any person as to the efficiency of measures for removal of deleterious matter from the effluents should be decided by arbitration. By sec. 76 of the Edinburgh Boundaries Extension and Tramways Act, 1920, the undertaking as administered by the Commissioners was transferred to and vested in Edinburgh Corporation, "to the like effect as if the Corporation were the Commissioners." The provisions of that Act, so far as then not superseded, were subsequently consolidated in the Edinburgh Corporation (Streets, & c.) Order Confirmation Act, 1926, which, after making it by sec. 155 an offence punishable by fine for "any person" to discharge into a Corporation sewer matter of whatever description likely to cause encrustation thereof, proceeds in Part VII—a series of sections headed "Water of Leith"—to re-enact, mutatis mutandis, in sec. 189, the provisions of the 1889 Act regarding arbitration.
In a summary complaint, brought in Edinburgh Sheriff Court by the Procurator-fiscal, which charged a limited company with contravening sec. 155 of the 1926 Act by discharging from their paper mill into the Water of Leith sewer matter likely to cause encrustation, the Sheriff-substitute, repelling a contention that sec. 155 applied only to other sewers administered by the Corporation, convicted and fined the accused.
Held, upon a consideration of the successive statutory provisions relating to the sewer here in question and to other Corporation sewers, and in view of the fact that the Act of 1926 contained, in Part VII, detailed provisions for the administration of this particular sewer, that procedure by way of a summary prosecution at the instance of the Procurator-fiscal under sec. 155, notwithstanding the wide scope of that section, was in the circumstances inapplicable to the present case, and that the question should have been determined by arbitration under sec. 189 of the Act; and conviction quashed.
Henry Bruce & Sons, Limited, Kinleith Mills, Currie, Midlothian, were charged in the Sheriff Court at Edinburgh upon a complaint at the instance of Thomas Greenlees Muir, Procurator-fiscal, which set forth that "you did, on 8th March 1943, discharge into the sewer of the Corporation of the City of Edinburgh, near to Kinleith Mills occupied by you at Currie in the County of Midlothian, liquid and solid substances containing alkaline and resinous matter, which substances were likely to cause encrustation of said sewer: Contrary to article 155 (1) (c) of the Edinburgh Corporation (Streets Buildings and Sewers) Order, 1926, and section 1 of the Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926: Whereby you are liable to the penalties specified in Article 155 (2) of said Order."1
The Sheriff-substitute (Gilchrist, K.C.), after evidence had been led, convicted the accused and imposed a fine, and at their request he stated a case for appeal to the High Court of Justiciary.
The case stated that the Sheriff-substitute found the following facts proved:—"(1) The appellants are the proprietors of, and work, the Kinleith Paper Mills, Currie, Midlothian; (2) The said mills are one of a number of mills situated on the Water of Leith; (3) Prior to 1889 the mills on the Water of Leith discharged their effluent direct into the Water of Leith; (4) For the purpose, inter alia, of purifying the Water of Leith and diverting therefrom the effluent of mills situated thereon, the Water of Leith Purification and Sewerage Act, 1889, was passed, and under the provisions of that Act a main sewer was provided into which thereafter the effluent of the mills fell to be discharged; (5) The authority set up under that Act to provide and maintain the sewer consisted of certain Commissioners appointed thereunder; (6) The undertaking of the Water of Leith Purification and Sewerage Commission under the 1889 Act, including the said sewer, was transferred to, and vested in, the Corporation of the City of Edinburgh by the Edinburgh Boundaries Extension and Tramways Act, 1920, and is now vested in the Corporation by the consolidating Act, the Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926, under which this prosecution has been brought; (7) The effluent from the appellants' mills passes through an inlet channel from the mill and enters regulating tanks, and thereafter passes through a short pipe into a sewer which is part of the said main sewer now administered by the Corporation under their foresaid Acts; (8) On the date mentioned in the complaint, to wit 8th March 1943, the appellants discharged into the said sewer from the said pipe leading from their regulating tanks a large quantity of effluent; (9) On the date mentioned, and whilst the effluent was flowing into the sewer, a sample of the effluent was taken by officials of the Corporation from the said pipe. When they did so, the Corporation officials interviewed Mr Cargill, the appellants' engineer, and invited him also to take a sample of the effluent, but he refused to do so; (10) Thereafter certain samples were taken of encrusted matter from the appellants' pipe and also from the said Corporation sewer, the latter sample being taken at a point in the sewer below the inlet of the said pipe. The sample from the sewer was taken on 1st April 1943 and the sample from the pipe was taken on 28th April 1943; (11) During the last two years it has been increasingly difficult to keep the said sewer clear, as the encrusting of the sewer through discharges into it has become markedly increased; (12) During the same period the appellants, through the want of supplies of esparto grass, have required to use and process wood in the manufacture of their paper; (13) Analysis of the sample of the discharge taken on 8th March 1943 discloses that the effluent on that day contained appreciable quantities of alkali and resinous matter; (14) The samples of the encrusted matter taken from the pipe and sewer respectively showed encrustation of a nature likely to have resulted from the presence of the quantities of alkali and resinous matter disclosed by the analysis of the effluent; (15) The effluent discharged by the appellants from their said mills into the said sewer contained substances likely to cause encrustation of the said sewer."
The case further stated:—"On these facts I held that the appellants had committed a contravention of section 155 (1) (c)of the Order scheduled to the said Edinburgh Corporation Act of 1926. It was, however, maintained on behalf of the appellants that section 155 (1) (c) did not apply to the sewer in question. Counsel for the appellants contended that the part of the sewage undertaking applicable to the Water of Leith was regulated solely by Part VII of the Order scheduled to the Act of 1926, which comprises sections 180 to 197 inclusive, and that section 155 applied only to the remaining sewers which are administered by the Corporation. After an examination of all the Acts to which I have referred in my findings in fact, and in particular the Act of 1926, I repelled that contention, holding that the sewer in question was a sewer of the Corporation, and that the Corporation were entitled to institute proceedings against the appellants under section 155 apart from the powers conferred on them by Part VII of the Act, which I held to be additional. I accordingly held the appellants guilty of the offence charged against them, and imposed a fine."
The questions submitted for the opinion of the Court were:—"(1) On the facts set forth was I entitled to hold that section 155 (1) (c) applied to the said sewer? (2) On the facts set forth was I entitled to convict the appellants of the offence with which they were charged?"
The case was heard before the High Court of Justiciary on 28th October 1943.
At advising on 12th November 1943,—
LORD JUSTICE-CLERK (Cooper).—The appellants have been convicted in the Sheriff Court at Edinburgh on a complaint at the instance of the Procurator-fiscal of an infringement of section 155 of the Edinburgh Corporation (Streets Buildings and Sewers) Order, 1926,5 the charge being that they discharged from Kinleith Mills into the Water of Leith sewer certain alkaline and resinous matter likely to cause encrustation of the sewer. It is apparent from the findings in fact that there is no suggestion of the appellants having been guilty of malicious, or even negligent, conduct in causing damage to the sewer, for the sewer is provided for the purpose, inter alia, of receiving the effluents from the mills on the Water of Leith (of which Kinleith Mill is one), and the discharge complained of is the effluent of a paper mill compelled (as many paper mills now are) to use as raw material wood pulp instead of the temporarily unobtainable esparto grass. It is obvious that far-reaching industrial and public interests are involved, and we are informed that this conviction, if sustained, and forced to its logical conclusion, might lead to the abrupt dislocation, if not interruption, of the industry. The reflection which thus arises at the threshold of the case is that, legal considerations apart, the issues which are raised are conspicuously inappropriate for disposal in a summary...
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