Scottish Court of Session Decisions

The harbour of Leith has from a very early period belonged in property to the community of the city of Edinburgh. In the year 1636, King Charles I. granted, by charter, to the Provost, Bailies, Council, and community of Edinburgh, a custom of 13s. 4d. Scots (one merk) on each ton and pack of goods imported by citizens of Edinburgh into Scotland, and by citizens and all other persons into Edinburgh, Leith, and Newhaven. The revenue arising from this custom formed part of the common good of the town. The grant of Charles was in 1661 ratified by Act of Parliament, ¹ and applied to the maintenance of the city clergy. The ratification bears that, “considering that the rents mortified and doted for entertainment of the Ministers of Edinburgh are not able to intertaine the Ministers thairof, but that the present Magistrates and Council of Edinburgh are necessitat yeerly to borrow money for that effect, which augments the debts and burdens of the said burgh, and will, in short tyme, make the debts thairof insuperable, thairfor his Mâtie, with advice and consent foresaid, ratifies, approves, and confirms ane gift,” &c., “to be applied to the effect foresaid, with power to the said Magistrates, &c. to uplift and exact the said custome,”—“to the effect the haill benefite of the said gift may be now applied towards the maintenance

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¹ 22d March, 1661, 7 Thomson's Statutes, p. 83, 84.

of the said Ministers of Edinburgh.” Under the authority of this charter and ratification, the Magistrates have levied and administered the custom of the “merk per ton,” &c. down to the present time, for behoof of the Ministers of Edinburgh, but under deduction of the expense of annual collection, and a proportion of the necessary and ordinary repairs of the harbour. This right of administration was recognised in subsequent British statutes relative to the improvement of Leith harbour and docks.

In June 1810, a dispute having arisen as to the proper application of the “merk per ton,” the Court found (July 6, 1813), in a process at the instance of the Ministers against the Magistrates, that the pursuers and their successors, as Ministers of Edinburgh, had “the sole interest in and exclusive right to the entire produce and benefit” thereof.

In 1826, the Act 7 Geo. IV. c. 105, was passed, to alter and amend several former acts, for enlarging and improving the harbour and docks of Leith, and to appoint commissioners for the superintendence and management of the same. Section 1 enacts, that the Magistrates shall continue, by themselves or their officers, to levy the dues and revenues they are entitled to levy in the port and harbour of Leith. Section 2 appoints a body of 21 commissioners (the Lord Provost of Edinburgh and five members of the Council being in the commission), for certain purposes; and section 17 enacts, “that it shall be the duty of the said commissioners to take the general superintendence, care, and management of the said harbour and docks at Leith, and works connected therewith, and to direct all matters in regard to the maintenance, repair, cleansing, and improvement of the same, as fully, and to the same extent, as the said Lord Provost, Magistrates, and Council of the city of Edinburgh, and their predecessors and authors, were empowered to do, by virtue of their charters and title-deeds, or by virtue of the said recited acts, or of any of them.” By section 23, the commissioners are authorized to order the execution of all improvements, repairs, &c. not exceeding £1000 for the harbour, and the like sum for the docks; provided always that, previous to the execution of any such works requiring the expenditure of any greater sums than these, the consideration thereof should be submitted to the Magistrates of Edinburgh, and should receive their sanction. Section 31 bears that, whereas the act 1661 confirmed and ratified the gift of the merk per ton, “and it was by the said act enacted, that the whole benefit of the said gift should be applied towards the maintenance of the Ministers of Edinburgh, and whereas the said duty on the ton and pack of goods imported at the port of Leith, is part of the shore and harbour dues of the same, and amount to about twofifths thereof, so payable by the said Lord Provost, Magistrates, and Council to the Ministers of the city of Edinburgh, subject to a proportion of the expense of collecting the said shore and harbour dues, and of the expense of repairing and maintaining the harbour of Leith; and whereas the said Ministers of Edinburgh would in consequence be obliged to bear their proportion of the advance of the sum of £28,000 (mentioned in a former clause of the act), for the extension of the said eastern pier; but it is expedient to regulate the burden of such expense as between the present Ministers of Edinburgh, and their successors: Be it therefore enacted, that in case the Ministers of Edinburgh, for the time being, shall, within six calender months after the passing of this act, by a writing under their hands, require the said Lord Provost, Magistrates, &c. to advance the whole of the said sum of £28,000, the said Lord Provost, Magistrates, and Council shall, and they are hereby required to advance the whole of said sum of £28,000 accordingly, and to relieve the said Ministers of Edinburgh and their successors, of all claims which may arise against the said duty on the ton and pack of goods imported as aforesaid, for any deficiency of the revenue of the said docks, that may in any way be made chargeable against the ordinary rates and duties of the said harbour; but the duty shall nevertheless continue, as heretofore, liable to the deductions to be annually made from the same, for the proportion of the expenses of collecting the said duty, and of the annual expenses of repairs on the said harbour, which expenses are hereby declared to include the repairs of all works erected or to be erected for the extension of the said harbour, and all piers or other works to be erected in virtue of this act, the repairs of which are chargeable against the ordinary rates and duties of the said harbour, and it shall and may be lawful for the said Lord Provost, Magistrates, and Council, in all time thereafter to retain annually out of the said duty on the ton and pack of imported goods, the sum of £600 as an equivalent for the advance so to be made by them, of the proportion of the said sum of £28,000 which the Ministers of Edinburgh would otherwise be required to advance; provided always, that until the whole of the said sum of £28,000 shall be advanced by the said Lord Provost, Magistrates, and Council, a proportion only of the said annual sum of £600 to be retained as an equivalent as aforesaid, shall be chargeable against the Ministers of Edinburgh, according to the amount of the advances which shall have been actually made by the said Lord Provost, Magistrates, and Council, on account of the said sum of £28,000.”

In 1826, a part of one of the walls of the quay connected with the harbour at Leith having given way, it became necessary, for the preservation of the harbour, to have the wall rebuilt. The ordering of this repair belonged to the province of the Dock Commissioners, who laid before the Magistrates a report by an engineer (Mr Leslie), suggesting the mode of repair, and stating:—“I am, therefore, of opinion, that there is no alternative but to take down about 130 running feet of the wall,” &c. It was estimated that the work would cost a sum of £800, which the Magistrates accordingly authorized to be credited to the commissioners from the general revenue of the port.

In January, 1837, the accommodation in Leith harbour being found to be inadequate for steam-vessels, especially those of the larger class, a representation was made by the owners and agents of steam-packets engaged in the trade of Leith, to the Magistrates and Dock Commissioners, stating that their vessels were “left without sufficient berthage-room in the old harbour, and no means of access to the docks afforded to them, whereby great loss is sustained by us,” and that the revenues drawn from the trade were sufficient, if properly applied, to “afford the accommodation which is admitted on all hands to be immediately necessary.” The commissioners had the harbour examined with reference to this representation, and a specific report was made by the same engineer, who estimated the expense of the work necessary for the accommodation wanted, as planned by him, at £2502. An application for such sum having been made to the Magistrates, they “authorized a credit for the execution of this improvement to be charged on the harbour and shore-dues in the usual manner to the extent required.”

Thereupon the Ministers presented a bill of suspension and interdict, concluding (with reference to the two sums of £800 and £2502) to have the Magistrates interdicted from uplifting any portion of the funds in the hands of their collectors belonging to the Ministers, as in right of the proceeds of the merk per ton, and from authorizing the Dock Commissioners to interfere with or apply any of the harbour revenues belonging to the Ministers as in right of such proceeds, except in so far as permitted by the statutes above mentioned, without obtaining the consent of the Ministers, or the authority of the Court; and farther, to have the collector of the Leith harbour revenues interdicted from applying any portion of the funds in his hands arising from the merk per ton except for the purposes and to the extent provided in the said acts, without the consent of the Ministers, or the authority of the Court. The bill prayed for letters of suspension and interdict accordingly, upon caution, and for interim interdict.

The Lord Ordinary, on appointing the bill to be answered, reserved consideration of the interdict, and added the subjoined note. ^*

Cases having been ordered, it was

Pleaded for the Ministers—

Admitting that the revenue arising from the merk per ton is liable to certain burdens, such as the expense of collection and the ordinary repairs of the harbour of Leith, the original statute of 1661 declares that

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^* “The interdict asked is not confined to the two resolutions of professed expenditure specified in the bill, but is so very comprehensive and unqualified, that it can in no view be granted before hearing the respondents. In the mean-time, the question is rendered litigious by the presentment of the bill.”

the “haill benefitte” of this custom shall be applied to the maintenance of the Ministers of Edinburgh, and the Court have so found by their judgment in 1813. No new power in regard to the application of this fund is conferred upon the Magistrates by the statute 7 Geo. IV. c. 105; but the scope of its provisions is rather to diminish their former influence over the administration and application thereof. The right of the Ministers to the produce of the merk per ton, under deduction of ordinary expenditure, cannot be destroyed or trenched upon by an Act of Parliament not containing express words to that effect; and whatever is of the nature of extra expenditure, of which the profit and advantage are speculative and contingent, cannot be charged upon this fund without the authority of a statute. But upon this view the Magistrates were certainly not entitled to put to the credit of the Commissioners the larger of the two sums in question.

Pleaded for the Magistrates—

Looking to the nature of the revenue drawn from the merk per ton, the provisions of the Act 7 Geo. IV., c. 105, and particularly the 17th, 23d, and 31st sections, and the present circumstances of the harbour and docks at Leith, the Magistrates had power to allocate upon that revenue a fair proportion of the expenditure required. Supposing there had been no such statute passed, but that the Magistrates had under their ordinary administrative powers made certain beneficial additions and alterations to the harbour, either in the form of docks or otherwise, they would have been entitled to reimburse themselves for their advances on account of this profitable expenditure by assessing a fair proportion of the outlay upon the merk per ton. But it can hardly be maintained that the existence of the statute is to have the effect of depriving the Magistrates of their original powers of applying a portion of the fund in question to necessary and profitable improvements on the harbour, or of liberating the fund from its ordinary and natural liability for such expenditure. This statute, as well as the former dock statutes, was truly intended for the purpose of enlarging the powers of the Magistrates directly, at least in regard to expenditure and levying of the different dues. The circumstance of the legislature having vested the Magistrates with increased powers as to the erection of works, and having afforded them the means of obtaining, by loan or otherwise, the sums necessary to defray the expense of such works in the mean-time, does not import either that the ordinary powers of the Magistrates were to cease, or that the Ministers were to get the whole benefit of the present and future expenditure, without contributing, through the merk per ton, any proportion thereof.

The Lord Ordinary having reported the case, it was this day put out for advising.