Lord Advocate v Police Commissioners of Perth, Company
| Jurisdiction | Scotland |
| Judgment Date | 07 December 1869 |
| Date | 07 December 1869 |
| Docket Number | No. 59 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ormidale. R.
Jurisdiction—Statute 25 and 26 Vict. c. 101 (General Police and Improvement Act, 1862).—
THIS was an application by the Lord Advocate on behalf of the Crown, and as representing the Board of Works, having for its object to prevent the respondents, the Police Commissioners of Perth, acting under the General Police and Improvement Act of 1862, from carrying out certain sewage operations, which, it was alleged, would have the effect of rendering the water of the river Tay, hitherto taken by the Board of Works for domestic purposes in the General Prison at Perth, unfit for these purposes, or would injuriously affect said water.
Section 394 of the General Police Act provides for notice of proposed works being given by the Commissioners; section 395 for objections being heard and disposed of by the Commissioners; and section 396 for parties aggrieved by any order of the Commissioners appealing to the Sheriff within seven days of the date of such order, and for the Sheriff determining the appeal.
The respondents averred that, though the statutory notice of the proposed works was given to the suspender, he had not availed himself of the mode of redress provided by sections 395 and 396 of the statute, and they accordingly pleaded—(1) The note of suspension is incompetent. (2) In any view, the suspender, not having adopted the mode of appeal provided by the Act, is not now entitled to be heard in the Court of Session on a note of suspension and interdict.
In answer to this defence, the suspender argued that, as the act proposed to be done was, if his allegations were true, one absolutely forbidden by section 198 of the Act,∗ he was not limited to the particular
jurisdiction pointed out by the Act.1 He also argued that it required express words to take away from the Supreme Court the power of redressing an alleged wrong, and there were no such words in the General Police Act.2The note having been passed, and a record made up, the Lord Ordinary (Ormidale), on 30th October 1869, pronounced this interlocutor:—‘Having heard counsel for the parties on the respondents' first two pleas in law, and having considered the argument and proceedings, repels the first of said pleas, and also repels the second, in so far as it was or could be urged as a preliminary bar to the present note of suspension and interdict being entertained in this Court,...
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