Leith Police Commissioners v Campbell. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 21 December 1866 |
| Date | 21 December 1866 |
| Docket Number | No. 57 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ormidale. R.
General Police and Improvement (Scotland) Act, 1862—Sheriff—Jurisdiction.—
THE Commissioners of Police for the burgh of Leith, which had adopted in whole the ‘General Police and Improvement (Scotland) Act, 1862,’ gave notice in terms of that statute, that whereas North Junction Street, North Leith, being a private street, as defined in the said Act, was not paved or levelled to their satisfaction, it was their intention to have the same properly levelled and paved. After a conference with the proprietors of premises fronting on North Junction Street, the Commissioners issued an order for the levelling and paving of that street.
Against this order certain of the proprietors of premises in the street appealed to the Sheriff, who, on 14th March 1864, pronounced this interlocutor:—‘Sustains the said appeal: Finds that the street called North Junction Street, North Leith, is not a private street to which the General Police and Improvement (Scotland) Act, 1862, does in its true intent and meaning apply, and that the said orders to which the appellants object are ultra vires of the said Commissioners, and illegal: Therefore assoilzies the said appellants from all obligation to obtemper or implement the said illegal orders, and decerns: Finds the said Commissioners liable to said appellants in expenses.’
The Commissioners thereafter brought the present action of declarator and reduction against John Archibald Campbell and others, owners of premises fronting or abutting on North Junction Street. The conclusions of the action were for declarator that ‘North Junction Street, North Leith, is a private street, according to the true intent and meaning of the General Police and Improvement (Scotland) Act, 1862, and that the provisions in the said Act in regard to private streets apply thereto;’ that said street was not sufficiently levelled and paved, and that it should be lawful to the pursuers, as Commissioners of Police foresaid, to cause it to be properly levelled and paved as a private street; and further, that the interlocutors of the Sheriff should be reduced ‘in so far as the same relate to or affect the said street, or can in any way be pleaded as a defence to the declaratory conclusions’ above set forth.
It is enacted by the General Police Act that the expense of the maintenance and repair of private streets shall be paid for by the proprietors of premises fronting or abutting on the same, whereas the expense of the maintenance and repairs of public streets shall be paid for by assessment on the general community. Sections 396 and 397 of the Act provide an appeal to the Sheriff to any party who considers himself aggrieved by any proceedings of the Commissioners of Police.
Section 397 contains this provision—‘Provided always, that all such appeals provided for in this and the immediately preceding clause, and all other appeals to the Sheriff allowed by this Act not otherwise provided for, shall be disposed of summarily, and the decision of the Sheriff shall in all cases be final and conclusive, and not subject to review by suspension, reduction, or advocation, or in any manner of way.’
Section 437 provides—‘Wherever any act, decision, determination, declaration, or deliverance of any Sheriff, or Magistrate, or Preses of a meeting, Commissioner, or Commissioners, or other person whatever, is by this Act declared to be final, the same shall not be subject to be set aside, or reviewed, or affected by any court or judicature upon any ground or in any manner of way whatever.’
The defenders in preliminary defences against satisfying production, pleaded res judicata and want of jurisdiction. These pleas were, however, repelled, so far as preliminary, and a record was made up, in which the defenders stated, inter alia, the following pleas:—(1) The action, both in its declaratory and reductive conclusions, is incompetent. (2) The judgment of the Sheriff under the statute founded on by the pursuers being final and conclusive, the present action, which seeks to set aside, review, or affect the said Judgment, is excluded by the statute, and is incompetent. (3) The declaratory conclusions of the action cannot be entertained unless and until the judgment of the Sheriff is set aside, and the said judgment being final and conclusive, and irreversible by any court or...
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