Rev. J. B. Lorraine & Others v. Magistrates of Peebles [1875] UKHL 430
Rev. J. B. Lorraine & Others v. Magistrates of Peebles.(Ante, vol. xi, p. 655.)
Subject_ Church — Burgh — Parish — Bells — Interdict. Facts:Interdict granted ( aff . judgment of the Court of Session) against the magistrates of a burgh authorising the bells of the parish church to be rung on Sundays for other purposes than calling the congregation of that church to worship.This was an action of suspension and interdict raised at the instance of the Kirk-Session against the Magistrates of the Burgh, with the object of interdicting the respondents from causing the bells in the steeple of the Parish Church from being rung on Sundays, or national or parochial Fast Days, for the purpose of calling the public to worship in the Parish Church.The case originated in a resolution adopted by a majority of the Town Council, in October 1873, to the effect that the bells in the Parish Church steeple should be rung every Sunday, except half-yearly Sacrament Sundays, at 11 A.M., 1.45 P.M., and 5.45 P.M. This resolution being regarded by the minister and Kirk-session as an encroachment on their right, they presented a note of suspension and interdict. Two questions were raised by the action—whether the Council had the right to regulate the ringing the bells on Sundays, and whether they were entitled to cause them to be rung on Sunday evenings for the use of Dissenting congregations, when there was no service in the Parish Church. The church and steeple were built by the Council under a joint arrangement between the burgh and the heritors, the latter contributing only £300. The site belonged to them, and the property in the steeple and its contents were expressly reserved to the burgh, but the arrangement was that the bells should be “employed” for the parish as well as the town. The bells had always been rung by an officer appointed and paid by the Council. The bells were rung three times a-day during winter, and four times a-day during summer—in the morning and at the meal hours to summon people to their work. The respondents insisted that the bells should not be rung at 5.45 on Sunday evening when there was no service in the Parish Church, for the sole benefit of the Dissenting congregations.The Lord Ordinary ( Shand ) found for the respondents, but on reclaiming note the First Division, by a majority, reversed and granted the interdict craved.The Magistrates appealed.At delivering judgment—
The Lord Chancellor said—My Lords, in disposing of this case your Lordships will not, as it seems to me, be called upon to decide some questions of common law of some nicety, which are referred to in the cases and proceedings; much less will your Lordships be called upon to entertain the question of any peculiar right which the Established Kirk of Scotland may be supposed to have as to the possession or use of bells in their kirks in contradistinction to those who are termed Dissenters. The case, my Lords, appears to me to rest upon grounds altogether apart from considerations of that description, and upon grounds which are extremely simple in themselves. My Lords, what, as it seems to me, your Lordships will really have to consider is the proper construction to be placed upon a contract, contained in a very few sentences, entered into in the year 1779, between the Parish of Peebles and those who represented it, on the one hand, and, on the other hand, the Town, represented by the municipal authorities. That contract appears to constitute what in this country would be termed a trust for public or charitable uses. And in this country possibly the case might have assumed the form of a proceeding for the administration of that trust. But in the form in which the case comes before your Lordships the same end will have to be arrived at through the construction of the contract to which I have referred. Now, in order to place that construction upon the contract, your Lordships, as it seems to me, will have to look, in the first instance, at the position in which the parties to the contract stood at the time when it was entered into. Let us take, upon the one hand, the town of Peebles. The town, at the time in question had an old building or belfry in which were two bells which clearly belonged to the town, and were used for the purposes of the town. That belfry had fallen into disrepair, and apparently the time had arrived at which the belfry must either be reconstructed or some other provision made for the housing and use of the bells—on the other hand, the parish and the heritors of the parish (and among the heritors the town itself was included) were in this position: The church was in a ruinous condition—it was an old church and had to be rebuilt. It does not appear very clearly whether there were any bells or what bells there were in the old church, or whether they were in a condition which would have made them available for the use of the new church. It was desired to erect a new church. The obligation to erect a new church would fall by the law of Scotland upon the heritors, including the burgh, so far as it was itself an heritor. The same law would have thrown upon the heritors the obligation of providing or furnishing the new church with a proper bell; but the law would cast no obligation upon the heritors to provide a steeple for the reception of the bell, or to ornament the church in any way with a steeple as part of its architecture. My Lords, under these circumstances it appears to have been considered desirable by the town to secure a habitation for their bells which obviously would be a not unnatural one, and which, architecturally, might probably be made the best habitation which could be procured for them; and in order to do this, it appears they were not unwilling to provide for the expense of constructing the steeple to the new church, which could not have been thrown upon the heritors against their will. The arrangement which was proposed by the town for this purpose is evidenced in the first instance by a minute of the 12th May 1778—“Then the Council appointed the Provost and Bailies of the burgh to meet with the heritors of the parish on Thursday first, in name of the Council and community of the burgh of Peebles, and to agree with said heritors either to repair the old or to build a new church, and to pay their proportion of the building thereof or reparation, as shall be agreed on, according toPage: 431 ↓
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Lord Chelmsford —My Lords, the question of the Town Council's claim of right to control and regulate the ringing of the bells in the steeple attached to the Parish Church depends entirely upon the terms of the agreement between the heritors and the Town Council of the 16th February 1779. The Church was built at the joint expense of the burgh and of the heritors, the heritors agreeing to contribute £300, and they were to possess one-third part of the Church, and the burgh the other two-thirds, and the parties stipulated that a steeple should be carried up on the east-end of the Church, which steeple, when finished with the bells, &c., therein, was to be the sole property of the burgh for ever, the bells however to be employed for the parish as well as the town. The steeple in which the bells are placed is structurally part of the Parish Church. If the burgh had not placed any bell in the steeple, the heritors would have been bound by law to have provided a bell for the purpose of summoning the congregation to public worship in the Parish Church. The burgh having placed their own bells in the steeple and stipulated that they were to be their sole property, the heritors would not have been discharged from their legal obligation unless the Town Council had appropriated the bells to the same purpose as a bell placed in the church by the heritors must have been applied to. They therefore agreed that the bells should be employed for the Parish as well as for the Town, which can have no other meaning than this, that the bells were to be used for the same purpose as if they had been put up by the heritors, which of course would be for the use of the Parish Church only. The parochial use of the bells is distinct, and is distinguished from the town use. To say that the ringing of the bells on Sunday at hours to suit the different congregations of various denominations is for the benefit of the town generally, and therefore a town purpose, is to confound the two uses for which the bells may be employed—the parish use, which is necessarily ecclesiastical, and the town use which is necessarily secular. Although the exclusive use of the bells in connection with the worship in the Parish Church for nearly 100 years cannot control the words of the agreement, nor perhaps interpret its meaning, yet it is impossible not to feel fortified in the construction which I have put upon the agreement by the fact that it has been adopted and acted upon for so long a period by both the contending parties without doubt or question. I agree with my noble and learned friend that the interlocutors ought to be affirmed, with the variation in one of them which he has proposed.Lord Selborne —My Lords, the only material facts (beyond the agreement of 1779 itself) appear to me to be these—first, that the bells in question have been lawfully placed in a steeple which, though vested in point of property in the Magistrates, is still an inseparable part of the structure of the church, and is accessible only through other parts of that structure; and secondly, that by the arrangement for providing in this steeple bells to be ‘employed for the parish,’ the heritors were in a lawful manner fulfilling an obligation incumbent upon them by law, to provide at least one bell for the purposes of the parish church. Under these circumstances, it appears to me impossible to doubt that when the agreement says the bells are “to be employed for the parish, as well as the town,’ it means that they are to be used for such purposes as are properly and truly parish purposes and properly and truly town purposes, and for no other purpose whatsoever; and that the regulation of the use of the bells for those purposes respectively was to belong, as to each kind of purpose, to the proper legal authority, i.e ., as to the parish purposes to the kirk-session, and as to the town purposes to the Magistrates; and that, as, on the one hand, the powers of the Magistrates as to Town purposes ought not to be usurped or encroached upon by the kirk-session, so, on the other hand, the powers of the kirk-session as to parish purposes ought not to be usurped or encroached upon by the Magistrates. This being so, I think it is reasonably plain that by assuming to regulate the hours of ringing those bells on Sundays for purposes of public worship, the Magistrates have in two respects trespassed upon the proper province of the Kirk-Session, and have violated the substance of the contract as to the employment of the bells “for the parish.” First, by fixing the particular hours at which the bells shall be rung for such purposes, whereas the right to fix these hours belongs properly to the Kirk-Session; and, secondly, by doing this with a view to other worship than that of the Parish Church, for which it would be wrong and unlawful both on principle and according to the decision in the Paisley case to ring any bell or bells which had been lawfully provided by the heritors in discharge of their legal obligation for the purposes of the parish. It further appears to me that there is no legal ground on the construction of this agreement for making any distinction for these purposes between one bell and another, so long as it is lawfully placed and remains in this steeple, and that there is no usage in this case by which the rights of parties, according to the legal construction and effect of the original agreement of 1779 have been in any way restricted or altered. While, however, I agree with the majority of the judges in the Inner House on the merits of this case, I think it will be proper that the interlocutor should be varied, without prejudice to the costs ofPage: 434 ↓
Interlocutor of 10th July 1874 varied; with this variation, case remitted to the Court below. Appellants to pay to respondents the costs of the appeal.Appellants' Counsel— H. Cotton, Q.C.; C. J. Pearson (Scotch Bar). Agents— Gibson-Craig, Dalziel, & Brodies, W.S.Respondents' Counsel— John Pearson, Q.C; Gloag (Scotch Bar). Agents— Gillespie & Paterson, W.S.