The duty of two pennies on the pint of malt liquor granted to the town of Borrowstounness, does not extend to porter imported into the town and harbour, and afterward sold in wholesale to strangers.
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The town of Borrowstounness obtained, in 1774, an act of Parliament for levying a duty of two pennies Scots on the pint of ale and beer, for the purpose of repairing the harbour. The duty has been continued by two subsequent statutes, in 1767 and 1794; and by the former it is extended to the parish, as well as the town of Borrowstounness.
The terms in which the duty is imposed by these statutes are, “That there shall be laid an imposition or duty of two pennies Scots upon every Scotch pint of ale and beer that shall be either brewed, brought in, tapped, or sold, within the said town of Borrowstounness, or the liberties thereof, and that the said imposition or duty shall be paid, or made payable, by the brewers for sale, or venders or sellers of all such ale and beer.”
The statutes further provide, “That if any time during the continuance of this act, any ale or beer shall be brought in, vended, or sold within the said town of Borrowstounness, and privileges thereof, having not first paid the duty hereby laid and made payable as aforesaid, the same, with the cask, shall be confiscated for the use of the said harbour.”
The uniform practice under these statutes, has been, to exact the duty on all ale brewed within the town and parish, and sold, whether to the inhabitants or strangers. But, with regard to ale and porter imported into the town and parish, the duty, till 1794, had been levied only on what was afterward sold for the consumption of the inhabitants, or by retailers, in small quantities, to the neighbouring districts.
In 1794, Alexander Muir, who farmed the duty on ale imported, made a claim against William Kay, and certain other shipmasters and shipowners in Borrowstounness, for the duty on all the porter imported by them into the town, parish or harbour, (which last lies within the parish) whether the same was afterward sold in wholesale or retail, or to purchasers residing within or without the territory.
The trustees appointed by the statute for the management of the duty, sustained Muir's claim; and their sentence was afterward affirmed by the Quarter-Sessions, to whom a power of reviewing the proceedings of the trustees is granted.
The defenders complained of these judgments by advocation; and
Pleaded: Although the words of the statute may seem at first sight to favour the claim of the pursuer, it is clear, that their meaning was, to give the duty only on ale consumed or sold by retail within the town or parish. The practice also since the commencment of the tax, shews, that it must have been the intention of the Legislature, and of those who originally applied for it, that it should not affect malt liquor imported into the territory, if it be afterward sold in wholesale to strangers. Indeed, it would materially injure the trade of the town to extend it to porter sold without the territory, as it would enable shipmasters from other quarters, not subject to the duty, to undercsell those of Borrowstounness.
Answered: The words of the statute clearly support the pursuer's claim. This is put beyond doubt, by the clause which makes the cask seizable if the duty be not paid immediately on importation. And indeed as all malt liquor brewed within the town pays the duty, although afterward sold beyond the district, there seems to be no good reason, why that which is imported should be more favoured. The erroneous practice hitherto arose partly from its having been for some time doubted, whether porter sold even within the territory was liable to the duty, and partly from a majority of the trustees appointed by the original statute in 1744 having been shipmasters, whose interest it was to make the duty on that article as light as possible.
The Lord Ordinary took the case to report on informations.
Some of the Judges, moved by the words of the statute, were for repelling the reasons of advocation; but a great majority, on the grounds stated for the defenders, thought their plea well-founded.
The Court “found, That porter, or other beer or ale imported by ship-masters and others into the port or harbour of Borrowtounness, and re-exported without being landed, or breaking bulk, or landed and put into cellars or warehouses, within the limits of the town and liberties of Borrowstounness, but afterward sold in wholesale and not by retail, to persons residing without the district, and not for consumption within it, are not liable in payment of the duty of two pennies on the pint, under the acts of Parliament libelled on; and therefore advocated the cause, and assoilzied the defenders.”
A reclaiming petition for the defenders, praying for an explanation of the judgment, in so far as to have it found, that the duty was not chargeable, in the first instance, on the importers, but on the retailers, was refused, (13th December 1798), without answers.
Lord Ordinary, Meadowbank,For Muir, W. Stewart.Alt. John Clerk, Turnbull.Clerk, Sinclair.
Fac. Coll. No. 92. p. 211.
