Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 STATUTE.
Subject_3 Interpretation of, and the effect given to a Public Statute.

Magistrates of Dumbarton
v.
Magistrates of Glasgow

Date: 19 November 1771

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[Faculty Collection, V. 234; Dictionary, 14,769.]

Gardenston. This exemption is a private right, established by private contract and long possession. It is not agreeable to the principles of justice and the practice of Parliament, to abolish private rights without an equivalent. We are not to put a construction upon an Act of Parliament which is unjust, when we can put a just one. I do not think that the Act means any injustice: it mentions the new duty in place of the old anchorage, i e. the anchorage as formerly levied, with an exception as to Dumbarton.

Hailes. I would make a distinction. If the whole duty may be levied by the Act, as much as is equivalent to the duty from which Dumbarton was exemed by the old contract, ought to be repaid.

Coalston. When public statutes encroach upon private rights, courts of law cannot interpose. The words here are general, imposing the duty upon all ships. I doubt also as to the equity of the exemption claimed. The old exemption was for anchorage at the old quay of Broomielaw; but this duty is for extending and improving the quay on both sides of the river. The window-tax was imposed by Parliament on the clergy in Scotland from an erroneous view of their condition; yet this Court could give no relief.

Pitfour. I cannot put Lord Gardenston's construction on the Act of Parliament. The statute must be our rule. We cannot say that it was enacted by obreption: the Town of Dumbarton might have been heard against the statute, and may still obtain a repeal of it, if they are aggrieved.

Kaimes. This case goes deep into principles of law. If we are to suppose that Acts of Parliament are to be-interpreted in strict words, even to the doing injustice to private rights, the supposition would be slavish, and the law despotic. The Act of Parliament did not mean to forfeit Dumbarton of its privileges. To exeme a man on account of his circumstances is one thing; to forfeit his privileges is another. This distinction answers the objection arising from the case of the window-tax. The ministers in Scotland, in respect of their circumstances, had been exempted from the window-tax, but they had no privilege to be exemed. In the case of Roystoun, an Act of Parliament said that debts were true debts. The Court here would not find the contrary. But this judgment was reversed upon Lord Hardwick's opinion. Suppose that the Act could not be otherwise interpreted, still the Magistrates of Glasgow, as representing the community, must indemnify Dumbarton for having obtained an Act derogatory of the contract with Dumbarton. I think that the exemption can only go to the extent of the old duty.

Monboddo. Here is a hardship upon the Town of Dumbarton: The same reason appears for exemption from the new duty as from the old. My difficulty lies upon our powers. The words of the Act of Parliament are general upon all ships who navigate the Clyde. We cannot introduce an exemption. The Town of Dumbarton ought to have opposed the passing of this law. Perhaps they would not have prevailed in their opposition. It might have been said that the Town of Dumbarton would profit to the extent of the duties. The case of Roystoun does not apply; for that Act was obtained upon false allegations of debts existing, which had been extinguished.

Justice-Clerk. Although I am no slave to Acts of Parliament, yet I will always give my judgment upon plain words, and not put myself in the place of the legislature. The words of the clause are as strong and particular as can be. I think the duty must be levied; but I do not see how the Magistrates of Glasgow can defend themselves against the warrandice of the contract for repealing the old duty.

Auchinleck. Here is an onerous contract between the towns. It is only in consequence of this contract that the town of Glasgow came to have right to levy any tolls on the river. A right to levy tolls is granted by the Act; but that does not take away the old contract. Suppose that the contract contained an obligation to pay a sum, in case the duties were levied, would the Act take away that obligation without ever mentioning it? If the town of Glasgow has an immunity at Dumbarton, the town of Dumbarton must have an immunity at Glasgow.

President. This is an ungracious plea on the part of the town of Glasgow; yet I doubt how far this Court can apply the remedy. Over Acts of Parliament we have not the Prætorian power,—adjuvare, supplere, corrigere. The words of the Act are express. The case of Roystoun is not in point: for there was a private Act of Parliament upon a false narrative. The heir of entail was found to have right to the value of the subject, because the debts of the entailer were fictitious. Yet still the Court could not have stopped the execution of the Act of Parliament, because it proceeded upon a false narrative. A personal exception operates not against a public law. I doubt whether the town of Dumbarton may not insist that the contract is not binding on the one side more than the other.

Barjarg. Numerous inconveniences would arise were Courts of law to explain away the unequivocal words of an Act of Parliament. The original of this right was founded on a decreet-arbitral; so also may its modification be adjusted. This would be a wise measure in both parties.

On the 19th November 1771, “In regard that the Act imposes the duty on all ships, the Lords found that the Court can give no relief in this action; and therefore assoilyied.”

Act. A. Lockhart. Alt. H. Dundas. Reporter, Auchinleck.