The Magistrates of a royal burgh, have no jurisdiction entitling them to extend petty customs beyond use and wont.
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The Magistrates of Aberdeen have been in use, from time immemorial, to levy a small duty upon cloth manufactured in the neighbourhood, and exposed to sale in the public market. But though, in the table of duties issued by the Magistrates, their tacksmen were empowered, in general, to exact the duty on all cloth brought to market for sale, it was not levied upon foreign cloth sold in the market, or upon any cloth sold in the shops, but was confined entirely to home-made cloth, exposed to sale in booths upon the streets.
A few years ago, the Magistrates authorised their tacksmen to demand a duty upon all cloth without exception; upon which the dealers in cloth presented a bill of suspension, and raised an action of declarator, concluding, that the Magistrates had no powers to exact any duty upon cloth sold in their shops, either of home or foreign manufacture.
The Lord Ordinary found, “That the Magistrates have no authority to introduce new petty customs, or extend the old ones, whether in their amount, or as to the persons subject to them, beyond the amount and liability established by use and wont: That the defenders do not allege, or offer to prove any usage within the years of prescription, of levying, generally, on cloth sold, or kept for sale or exportation in shops or ware-houses, within the royalty, by freemen burgesses, the same or any other customs, such as the petty customs levied on cloth brought to the public weekly market of the burgh, and exposed there to sale by strangers or others: Therefore, in the declarator, decerns, as libelled, as to the freedom claimed from paying any petty customs on woollen or linen cloth by freemen in shops or warehouses with in royalty, for sale or exportation; and in the suspension, suspends the letters simpliciter, and decerns.”
The Magistrates reclaimed, and
Pleaded that the exaction claimed was no extension of the powers of the Magistrates, beyond the letter of the ancient grants to the city;—that from the earliest periods they had been in use publishing tables of customs, imposing a duty upon all cloth brought within the burgh for sale, without distinguishing whether it was of foreign or home manufacture, or whether it was sold in the shops, or in booths and stalls;—that originally all cloth exposed to sale was sold upon the streets;—that if any disuse had arisen in the payment of the duty, by any of the persons liable for it, could not affect the privileges of the burgh, or create an immunity for the future;—that the distinction attempted had no sold foundation;—and that the more extensive dealers, who sold cloth in warehouses, were more able to pay the duty than those who were in use to sell it upon the streets.
Answered: this is an attempt in the Magistrates of a burgh to impose a tax upon the inhabitants, which belongs only to the Legislature. There is no such thing as a discretionary power in Magistrates to impose new, or increase old duties, unless with the approbation of the community; Town of Aberdeen against Lesk and others, 11th January 1678, No. 16. p. 1866; Erskine, B. 1. Tit. 4. § 22; Bankton, B. 4. Tit. 19. § 2. All the duties levied within the burgh are regulated by use and wont; and an attempt to increase these duties, at the pleasure of the Magistrates, has been found to be beyond their powers; Boog against Magistrates of Burntisland, 22d February 1775, No. 103. p. 1991; Tod against Magistrates of St. Andrew's, 15th June 1781, No. 106. p. 1997; Judgment of the House of Peers, in the case of the Magistrates of Edinburgh against Corporation of Fleshers, 24th June 1802, No. 6. p. 10. Appendix, Part I. voce Burgh-Royal.
The Court adhered.
Lord Ordinary, Meadowbank.Act. Baird.Agent, Jo. Morison, W. S.Alt. Burnett.Agent, Jo. Innes, jun. W.S.Clerk, Colquhoun.
Fac. Coll. No. 183. p. 410.
