Scottish Court of Session Decisions

This was a note of suspension and interdict presented in July 1871 by Mr Charles Cowan of Logan House, and Mr Colin Mackenzie, W.S., two of the ratepayers within the district over which the Edinburgh and District Water Trustees have power to levy assessments.

The respondents were the whole body of Trustees acting under the Edinburgh and District Waterworks

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Act, 1869, at the time the note was presented, with their clerk and treasurer.

The prayer of the note was as follows:—“May it therefore please your Lordships to suspend the proceedings complained of, to interdict, prohibit, and discharge the respondents from applying the trust-funds in their hands, or any part thereof, in payment of any costs incurred by them or others in promoting a bill in the Parliament of 1870–71, for the purpose of obtaining statutory authority to bring in a supply of water to Edinburgh, Leith, and Portobello, from St Mary's Loch; and further, to interdict, prohibit, and discharge the respondents from borrowing money, and from laying any assessment upon, or levying or exacting any rates from, the complainers or the other ratepayers in the district over which the respondents have powers of assessment under the Edinburgh and District Waterworks Act, 1869, for the purpose of paying in whole or in part such costs as aforesaid; and further, in the event of the said respondents, or any of them, entering appearance and opposing the granting of the prayer of this Note of Suspension and Interdict, to find such of the respondents liable in expenses; or to do otherwise in the premises as to your Lordships shall seem proper.”

The facts, which will appear more fully from Lord Gifford's Note, were shortly, as follows:—

Prior to 15th May 1871 the supply of water to Edinburgh and district was furnished by a joint-stock company, incorporated by Act of Parliament, and having statutory powers to levy rates. The Company was originally incorporated by 59 Geo. III. c. 116, and during its existence five bills were from time to time obtained by it from Parliament for bringing in additional supplies of water from new sources.

In the session 1868–9 the Corporations of Edinburgh, Leith, and Portobello introduced a bill into Parliament for the purpose of transferring the undertaking of the Water Company to public trustees, to be elected by the Corporations, and for powers to bring in water from St Mary's Loch. The latter part of the bill was thrown out on account of noncompliance with standing orders, but the bill, so far as concerned the transfer of the undertaking, passed into law, under the title of the “Edinburgh and District Waterworks Act, 1869.” The present respondents were duly elected under this statute.

After examining various sources of supply, the respondents decided in favour of St Mary's Loch, and in the session of 1870–1 they, or the majority of them, promoted a bill before Parliament for obtaining powers to bring in water to Edinburgh and district from St Mary's Loch. The bill was opposed, on various grounds, by a number of ratepayers, who claimed to be the great majority of the community, and a very heavy expenditure was incurred in promoting the bill. The preamble of the bill, after being found proven by a Committee of the House of Commons, was found not proven by a Committee of the House of Lords, who issued the following deliverance:—

“This case being a very important one apparently, the Committee have thought it right to put in writing their opinion, and the reasons for coming to it. The Committee are of opinion that it is not expedient to proceed further with the bill. They hold that with better care and regulation as regards waste, and with increased storage for the utilization of water drawn from the present sources of supply, Edinburgh can obtain all that is requisite for her needs; and they hold further that they cannot sanction so large an expenditure of money, which appears not to be required at present.”

The present question turned upon a construction of the Act of 1869, and the previous statutes obtained by the Water Company. The “Waterworks Clauses Act, 1867,” is incorporated with the Act of 1869, with the exception of all provisions with respect to the construction of water-works.

The respondents pleaded—“The present note of suspension and interdict ought to be refused, with expenses, in respect that the acts and proceedings of the Trustees to the expenses of which it has reference—(1) Were necessary and proper in the due administration of the trust now vested in the respondents. (2) Were not only in furtherance of the main purpose of that trust, but necessary to its attainment. (3) Were done and carried on bona fide, and were within the statutory powers of the respondents.”

On 31st August 1871 the Lord Ordinary on the Bills ( Mure) passed the note, on caution, and granted interdict in somewhat qualified terms, omitting that part of the prayer which sought to interdict the laying on of the assessment, and confining it to an interdict against exacting payment of the rates.

On 5th December 1871 Lord Gifford, before whom the case was enrolled, pronounced the following interlocutor:—

“Recals the interdict granted ad interim by the interlocutor of 31st August 1871: Suspends the proceedings complained of, interdicts, prohibits, and discharges the respondents in terms of the prayer of the note of suspension; Declares this interdict, now granted, to be perpetual, and decerns: Finds the suspenders entitled to expenses, and remits the account thereof, when lodged, to the Auditor of Court to tax the same, and to report.

Note.—This is a very important case, involving large sums, and the decision of which adversely to the respondents may give rise to serious questions of personal responsibility.

The case is also one of very general interest as affecting the duties, powers, and responsibilities of public and statutory trustees. The entire bona fides of the respondents in their whole actings was very strongly pressed on the Lord Ordinary, but he has not been able to find that mere bona fides on the part of the Trustees is sufficient to exclude consideration of the great question, Whether the costs and expenses of promoting the bill to obtain a supply of water from St Mary's Loch are or are not to be defrayed from the statutory funds in the hands of the respondents, as Trustees under the Edinburgh District Waterworks Act of 1869?

The respondents in the present case are the Trustees under the Act of 1869—the whole body as a Corporation, without any distinction of minority or majority—the statutory trust which, though fluctuating in its members, is permanent in its constitution, appears as respondents, and the question is competently raised by two ratepayers within the district, Whether the costs of promoting the bill, which was lost by the decision of the House of Lords' Committee last session of Parliament, can be lawfully defrayed out of the assessments which the Trustees are authorised to levy? This question the Lord Ordinary is bound to decide, apart altogether from the ulterior question, upon whom those costs, or any part of them, will

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fall, in the event of its being found that they are not chargeable against the assessments.

The Lord Ordinary has given the question raised in this action the most careful consideration in his power. In his view, it turns entirely upon the construction, meaning, and effect of the statutes held by the respondents, including not only their own Act of 1869, and the statutes incorporated therewith, but also the whole series of prior Acts which were obtained by ‘The Edinburgh Water Company,’ in whose right and place the Trustees now stand. These Acts are very voluminous, and it is not easy to determine the exact import and effect of many of their provisions.

On the whole, and after the best consideration in his power, the Lord Ordinary has come to the conclusion that the costs of St Mary's Loch bill, promoted in last session of Parliament, do not constitute a proper charge against the assessments levied or to be levied by the respondents. He has come to this conclusion, however, not without great hesitation and difficulty, and, he is free to add, not without regret and reluctance; but he has felt himself bound to apply a strict rule, which, although it may often be productive of hardship, and may be so in the present case, is still, he thinks, upon the whole, salutary and beneficial.

In the debate before the Lord Ordinary there was not much conflict between the parties as to the general principle or the general rule of law applicable to cases like the present—the great contest and the great difficulty arises in the application of an admitted principle to the peculiar circumstances of the present case—to the position of the respondents as trustees, and to the duties incumbent upon them as such.

In general, it may be said that trust-funds can only be applied to trust purposes; that in every case the powers of trustees are limited by the constitution of the trust; and that they cannot divert the trust-funds, or any part thereof, to purposes either opposed to or different from the purposes for which the trust was created. Of this principle there are multitudes of illustrations, applicable to every different kind of trust, but it is always in each case a question—What is the real purpose of the trust, and what are the powers incidental thereto, which are either expressly or by implication vested in the trustees? and to determine this question, the nature, constitution, and circumstances of each particular trust must be looked to; and, as these vary in each case, the general principle will vary in its application.

In all cases, besides the powers expressly conferred upon trustees, there are many powers which are held as implied, and which, from their nature and variety, must almost necessarily be left to implication, and the real difficulty often is to draw the line, and determine the limit of these implied powers; and when the power claimed and exercised by trustees is peculiar or abnormal in its character, the difficulty is greatly enhanced, and a very careful consideration may be required to determine whether it is or is not fairly within the trust.

Now, the promoting or opposing a bill in Parliament may be said to be in some respects an extraordinary act on the part of trustees. Not that it is an uncommon or unusual thing for trustees to do, for trustees of various descriptions both promote and oppose bills in Parliament every day, but the procuring of new legislation, or of powers which the Legislature alone can give, is not, in general, an object for which a trust is constituted; and unless there be express power to go to Parliament, it will require in general a pretty strong implication to justify trustees in doing so at the expense of the trust.

When the object of the bill promoted by the trustees is to obtain an increase or alteration of their own powers, or to change or subvert their own constitution, a strong case must be made out before the expense of such an unsuccessful attempt can be charged against the proper trust-funds. For it can never be presumed that trustees are appointed for the very purpose of altering, amending, or it may be entirely subverting, their own powers and constitution. This point will be afterwards noticed, when considering the special nature of the respondents' trust.

It may be useful, before adverting to the specialties of the present case, to consider a few of the leading cases which have been decided relative to the powers of trustees to promote or oppose Parliamentary measures. These cases are referred to merely as illustrations of the general principle above stated, and which the Lord Ordinary thinks must regulate the present question.

In the Attorney-General v. The Guardians of the Poor of Southampton, May 23, 1849 ( 18 Law Jour., Chancr. 393), the Guardians of the Poor of Southampton applied for an Act of Parliament to vary the mode of assessment, and to authorise the rates on small rents under £12 to be levied from owners instead of occupiers. The bill was lost, and the Court held that the Guardians could not charge the cost thereof against the poor-rates under their charge.

In the Attorney-General v. Andrews, Jan. 24, 1850 ( 19 L.J., Chancr. 197), the Commissioners of Waterworks of Southampton applied for a new Act for extending their powers. Twenty of the Commissioners were in favour of promoting the Act, and only two opposed it. The Court held that, although the new Act might be very desirable, the costs of promoting it could not be defrayed out of existing rates. This is a strong case; for the existing Act empowered the Commissioners ‘to increase the supply of water by such means as they should think proper, and to do and execute all such matters and things as should be necessary for that purpose.’

Attorney-General v. Liverpool ( 1 Myl. & Craig, 171; 7 L.J., Chancr. 51).

Attorney-General v. Norwich ( 16 Simon. 225).

Stevens v. South Devon Railway Company (Jan. 16, 1851, 20 Law Jour., Chancr. 491).

In Taylor v. Chichester Railway Company, June 24, 1867 (Law Reports 2, Exchequer 357), a railway company, in order to buy off opposition to an Extension Act, agreed to pay a landowner £2000. The Act passed, but made no provision for this payment. Held by Exchequer Chamber that the £2000 could not be paid from the funds of the company.

Myles v. M'Ewen, Jan. 13, 1855, 18 D. 205. Here the Commissioners of Police for Dundee applied for an Act to prolong their powers. The Act was opposed, and after incurring about £1000 of expenses, was abandoned, and the General Act adopted by a majority of householders. The Court held that, although the Commissioners had applied for the Act in optima fide, the expense could not be charged against the police funds.

See Brown v. Adam, Feb. 19, 1848, 10 D. 744.

M'Lean v. Macintosh, June 30, 1862, 14 D. 928. Here the Magistrates of Inverness, who were trustees

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of the Mackintosh Educational Fund, applied for an Act to unite the fund with the funds of the Inverness Academy under a joint trust. The bill was opposed, and the Committee of the House of Lords gave an adverse opinion, whereupon it was abandoned. Held that, although the expense of opposing the bill had protected the trust-funds, they could not be charged against these funds.

Brighton v. North, Feb. 13, 1847 ( 16 L.J., Chan. 255). Here the Trustees of the banks of the River Ouse were found entitled to the costs of opposing a bill which would have injured the river's banks, the Lord Chancellor Cottenham explaining that every trustee is entitled to the fair expense of defending the trust property.

The same principle was recognised in Campbell, Petitioner, Jan. 12, 1847, 9 D. 397; Mill v. Fraser, Nov. 25, 1859, 22 D. 33; Regina v. Norfolk Commissioners of Sewers, 20 L. J., 2 B. 121; Vance v. East Lancashire Railway, 3 K. and J. 50.

There are various other cases, most of which will be found referred to in the judgments above quoted.

The principle fairly to be gathered from these cases appears to be, that in each case it must be shown that the Parliamentary costs were incurred in the exercise of powers either expressly or by clear implication conferred upon the trustees. It seems, further, that the expense of opposing a bill will be more easily admitted as a charge upon the trust-funds than the expense of promoting a bill—at least where the opposition to the bill is for the purpose of protecting the trust-estate.

Applying these principles to the present case, the Lord Ordinary thinks, on a consideration of the whole statutes held by the respondents, that the respondents' trust was not constituted or created for the purposes of obtaining new or additional supplies of water, that is, new sources of supply, but solely for the purpose of administering the existing supply, that is, the supplies and sources of supply which by the statutes are now vested in the respondents. He has consequently felt himself compelled to disallow as a charge against the trust, that is, against the assessments which the respondents levy, the costs of the unsuccessful measure which the respondents promoted in last session of Parliament.

Avoiding all detail, and all minute criticism of clauses, the Lord Ordinary will shortly indicate the grounds upon which his opinion rests.

(1) The Act of 1869, under which the respondents are incorporated, does not by any express provision authorise them either to bring in new sources of supply or to make application to Parliament for powers to do so.

Of course, this is by no means conclusive, for in such a trust many powers must be implied; but it is, to say the least, very remarkable that, if, as was contended, one of the primary duties of the trust was to get more water, not one word about this should be contained in the statute. The getting additional supplies, or the obtaining of statutory powers to do so, were and are very important matters, involving very large costs and expenses; and if it was intended that the Trustees should either get new supplies or apply for powers to get them, it is natural to expect that this would be specially provided for in their Acts. But neither in the Act of 1869, nor in any of the statutes incorporated therewith, nor in any of the Acts of the old Company, is there any provision authorising the course which the Trustees have recently adopted. The preliminary expenses of obtaining a new Act may often be, and in the present case are, very large. Surveys by engineers, and estimates for works more than forty miles long, and of great magnitude, had to be obtained. Numerous conflicting interests had to be provided for, preparations had to be made for opposition, which was sure to be offered, and an expensive Parliamentary contest had to be engaged in. It is strong to hold that all this is to be held as authorised merely by implication, when a single clause or a single sentence in the Act of 1869 would have removed all doubt, and all difficulty. In this respect, the case of the present respondents is much weaker than that of the Southampton Water Trustees, for in that case these trustees had general powers to increase the supply of water.

(2) The respondents' Act of 1869 does not even narrate that the supplies or sources of supply thereby vested in the respondents were insufficient or inadequate, or that it was expedient to get farther or additional supplies. Some such narrative as this would have been natural if the intention of the Legislature had been that the Trustees should set about getting new supplies, and preparing and promoting bills for that purpose.

The absence of any allusion to the deficiency of supply is the more remarkable, when it is remembered that the bill of 1869 originally contained powers to bring in St Mary's Loch, and that that part of the bill contained an inductive clause that more water was needed; and it is to be noticed that in all the previous Acts of the old Company, whenever powers were granted to bring in new springs, the statutes themselves narrate the necessity or expediency of new supplies.

(3) It is true that there are some expressions in the Act of 1869 which might point to additional supplies. For example, the title of the Act bears inter alia to be ‘for supplying water.’ The inductive clause of the Act bears that ‘the supply of water should be provided by’ the Trustees, &c. These expressions, however, are ambiguous. They may mean either ‘supplying’ and providing from existing sources handed over to the Trustees, or from new sources not yet obtained, and the Lord Ordinary thinks, on a purview of the whole statutes, that the former meaning is that truly intended. It is thought that an ambiguous expression must be interpreted by the unambiguous parts of the statute.

(4) The vesting clauses of the statute are confined to the estates, subjects, and sources of supply which belonged to the old Company, and it is one of the inductive clauses of the statute that it is expedient to transfer the old undertaking to a new and a public trust. Indeed, the statute expressly refers to the provisions which the old Acts contain for this purpose, and states that the said provisions were ‘unsuited to existing circumstances,’ and the fair reading of all the statutes seems to be that the old undertaking is simply to be placed under new and better management. Additional powers, no doubt, may be and are expressly conferred upon the new Trustees, but all this is only for the administration and management of the old estate.

(5) And this leads to the remark that the old Water Company had no express power by any of their statutes to promote bills in Parliament, or to get up schemes for obtaining new sources of supply, and no such power seems to be implied in any of the old Acts.

It is true that the old Company had occasion

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to come very frequently (six or seven times) to Parliament, and on several of these occasions got powers to bring in new supplies, and it was very ingeniously urged that the new trust will just have to follow the same course. But all the old Company's Acts specially provide for the costs thereof. It rather appears to be a begging of the question to argue, that if the old Company had lost any of its bills the expenses thereof would have been a good charge against opposing or objecting shareholders. The Lord Ordinary thinks that if any such question had arisen, protesting shareholders might have successfully resisted payment from their funds of the cost of promoting abortive bills brought in by the directors or their majority. Such question would be very similar to that now raised, and there is abundant authority for holding that the directors of a railway, or other statutory company, cannot charge against resisting shareholders the expense of unsuccessful attempts to promote new and different lines of railway.

Indeed, the principle restraining directors or trustees from going beyond the powers of their Act, or charter, or contract, is in general of clearer application in the case of a private company than in that of a public trust. It is easily conceiveable that a person might be willing to take shares in a company for bringing in the Crawley springs, who might shrink from taking shares in a company for bringing in St Mary's Loch, and it would be most unjust if money subscribed for a limited purpose should be diverted, in order to involve the subscriber in the responsibilities of a different and, it may be, gigantic and hazardous undertaking.

(6) The respondents, by their statutes, have no power to make new works for bringing in new supplies, but have merely power to make and maintain works for distributing the existing supplies.

The ‘Waterworks Clauses Act’ of 1847 is incorporated with the respondents' Act of 1869, but there is specially excepted ‘all provisions with respect to the construction of waterworks.’ Nothing could more strongly show that the respondents are not to bring in new supplies, than that they have no power to make new works for any such purpose. It was said that the construction clauses of the Act of 1847 were not applicable, and that therefore they are excepted. But if this were the only reason, other or substitutional powers would be given. But no such powers are conferred at all, and the inference is irresistible, that it was the existing sources of supply, and not new sources, which the statutory trust is to manage and administer.

(7) The same result follows from a consideration of the funds which the respondents are authorised to raise. These funds consist of—first, sums which the Trustees may borrow; and second, sums which they may raise by assessment. The borrowing powers are conferred by § 79, but moneys borrowed are only applicable to three purposes—first, the mortgage debt of the old Company, and the sums payable to the old Company; second, the expense of renewing ‘main pipes and conduits;’ and third, the expense of laying ‘additional service-pipes.’ It was conceded in argument, and seems pretty clear, that the respondents could not apply moneys borrowed either towards bringing in new supplies of water—that is, supplies from new sources—or towards the expense of bills promoted for that purpose.

The only other funds at the disposal of the respondents are the annual rates and assessments which are authorised by § 65 and following sections. Now, these assessments are only applicable to annual charges and expenses, or, as it is expressed in the Act itself, to sums “ chargeable against revenue.’ But the expense of a new Act for bringing in St Mary's Loch, and of all the engineering and other surveys necessary, can hardly be said to be a proper or equitable charge against revenue. If the Act had passed, these would have been a charge against capital. They would have been part of the expense of the new supply, just as much as the reservoirs or embankments necessary for bringing in that supply, and it would be rather hard to assess the ratepayers of any one year for the costs and expenses of a measure intended to serve all time coming.

In the bill promoted there was a special clause authorising the expenses of the Act to be paid either out of the rates or out of moneys borrowed. The Lord Ordinary does not attach much importance to this clause, although in some of the decided cases it was founded on as a reason for disallowing the costs of an unsuccessful Act. But it seems a fair subject for consideration whether, apart from any special clause, the costs of an Act, if obtained, or of a bill unsuccessfully promoted, form a charge against capital or against revenue,

Great stress was laid by the respondents upon the very broad terms of the 65th section, defining the purposes to which the annual assessments are applicable, and no doubt the enumeration is very wide and comprehensive. It must be borne in mind, however, that the costs now in question do not fall under any of the heads specially mentioned in the 65th clause, and general expressions, such as ‘other out-goings and charges’ and ‘other charges and expenses,’ must always be interpreted with reference to the charges and expenses specially enumerated.

But besides this, the general question always returns—Are the expenses now claimed authorised by the Act, either expressly or by implication, for no generality of expression occurring in a clause like the 65th can ever authorise the Trustees to divert the trust-funds to purposes not authorised by the statute.

(8) One great difficulty—indeed, it may be said, the great difficulty in the case, arises from the duties imposed on the Trustees by statute, and the penalties to which the Trustees or the trust-funds may be subjected for failure to discharge these duties.

By section 35th of the Waterworks Clauses Act, the respondents are bound to keep in the pipes a sufficient supply of water ‘ constantly laid on under pressure,’ and to lay down pipes to every district within the limits of the Act, provided an undertaking is given to pay, for three years, rates not less than 1–10th of the expense; and by sections 36 and 43 penalties are imposed for failure or neglect to supply water or to lay down such pipes.

The force of these clauses is intensified by the provision in section 4 of the respondents' Act of 1869, that no penalties shall attach for a period of five years from the vesting of the undertaking in the present respondents,—that is, for five years from Whitsunday 1870.

The Lord Ordinary feels that these clauses do create great difficulty and embarrassment. They raise a very powerful argument in favour of the respondents, and they merit the closest and most anxious consideration.

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Taking everything into view, however, the Lord Ordinary has come to think that all these clauses must be held to be conditional, and as having reference to the estate and supply at the command of the respondents. The duty on the respondents as public trustees must be measured by the means at their disposal. They can only discharge the duty in reference to the estate with which they are vested. This is expressed in clauses 36, 42, and 43 of the Waterworks Act, exempting from duty or from penalty when the undertakers are prevented from giving the supply by frost, unusual drought, or other unavoidable cause or accident; ‘and although it was urged that the expression ‘other cause,’ when interpreted in reference to the preceding words, will not include permanent deficiency in the sources of supply, the Lord Ordinary thinks this would be too rigid a construction when applied to the circumstances of the case. The penalties are imposed in the event of ‘ neglect or refusal’ to supply, and it is thought that there can be no neglect or refusal when the statutory means, with which alone the respondents have to do, prove insufficient.

It would be a very startling thing to hold that the penalties referred to, which, in their original intention, were directed against private companies, which of course must see to their supply before they undertake statutory duties, apply absolutely and unqualifiedly to a public trust like the present. For the result would be, that, in the event of a permanent inadequacy in the source of supply—an event which is said to have occurred— every ratepayer, without exception, would be entitled to penalties, and as the penalties can only be paid out of the rates, all the ratepayers would be assessed to pay penalties to themselves so far as the rates would go. The Lord Ordinary is not prepared to adopt an interpretation which would lead to this result.

Still further, on the respondents' own showing, they have only five years given them to procure an Act and bring in large additional supplies. But two years have already elapsed, and it is easily conceivable that other three years may pass without the respondents being able to obtain a bill. They may fail in other Parliaments as they failed in the last one, and even when an Act is got, time will be needed to bring in the water; so that, without the least fault on the part of the respondents, the five years might easily elapse without their having the means of avoiding the penalties. It would be a strong thing to hold that penalties are imposed upon a public trust, or rather upon the public, unless statutory powers are obtained, which powers the Legislature, in its wisdom, may not see fit to grant.

Without in the least disguising the difficulty, therefore, the Lord Ordinary feels himself compelled to interpret the penalty clauses as only applying to the case of the trustees failing or neglecting to use the means at their disposal.

This view is confirmed by other clauses, which in quite absolute and general terms impose upon the respondents the duty of supplying, for certain maximum rates, water to shipping, water to brewers, distillers, and manufacturers, and water for working machinery, and water for fountains and ornamental purposes. There is no condition expressed, the duty is in terms absolute, and a brewer or manufacturer tendering the maximum rate would have action to compel supply. But the Lord Ordinary thinks that the condition must always be held implied ‘if there be sufficient water for such purposes.’ The trustees are surely not bound to go to Parliament merely to get water to play in fountains, or to drive machines, and this seems to be inferred from the expression in the 63d section, that water for shipping, manufacturers, machinery, and fountains, is to be given after the trustees have supplied, from lime to time, persons requiring water for dwelling-houses, shops, and offices. The idea of postponement in the order of supply implies possible deficiency, and it seems only fair that this condition should be held to run through the whole enactments.

The period of five years allowed by section 4 may possibly have reference to the prevention of waste by the respondents. By the Waterworks Act the respondents have very large powers to check and prevent waste. The House of Lords, in throwing ont the bill last session, gave their reason, thus: They hold that, with better care and regulation as regards waste, and with increased storage for the utilization of water drawn from the present sources of supply, Edinburgh can obtain all that is requisite for her needs.’ In the opinion of the Committee of the House of Lords, therefore, if waste is prevented, there will be ample supply, and it is not an unreasonable interpretation of § 4 of the Act of 1869, that five years were allowed for the adoption of those measures which would make existing sources of supply ample and sufficient.

(9) On looking at the bill promoted by the respondents, the Lord Ordinary observes that, among numerous new powers, power was asked to impose new and additional assessments. It is an additional reason for holding the promotion of such an Act to be ultra vires of the respondents, that they were seeking to impose new assessments. The Lord Ordinary cannot hold that the Act of 1869, which empowered a limited and fixed assessment, authorised the Trustees to use these assessments for the purpose of getting power to lay on extra assessments. This would be assessing the inhabitants for the purpose of getting authority to assess them still farther. It is thought that something very express would be required to authorise this.

Indeed, this is just a special illustration of the general principle already alluded to, that in dubio trustees can never be held empowered to apply trust-funds for altering, enlarging, or overturning their own constitution.

The Lord Ordinary will conclude with one general observation. It was strongly urged upon him that it was extremely expedient that a public body of trustees like the respondents should be invested with the power of seeking out new sources of supply of water, and of obtaining Acts to bring in new supplies therefrom. To this it is a sufficient reply that no such power has been conferred upon the present respondents, and that a power so great should not be held as conferred, except by express legislative provision.

But the Lord Ordinary doubts extremely the expediency of vesting such powers in a public trust. The recent contest affords a very strong illustration of the hardships to which such powers might lead. A very large section of the community, claiming to be the great majority, opposed the bill promoted by the respondents, and what the respondents now seek is, that these opponents shall not only be left to pay the whole expenses of their successful opposition, but shall, in addition, be assessed in order to defray the expense of promoting the very measure which they defeated. Strong reasons of expediency

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might easily be urged why the expense of legislative proceedings and legislative contests should not be provided for by anticipation, but should be left to the Legislature itself, and to the public spirit and personal responsibility of the promoters.

The Lord Ordinary's judgment, however, is not rested on grounds of expediency, but on a special consideration of the respondents' statutes. The grounds of the Lord Ordinary's judgment would not in the least apply to bills promoted by Town Councils, or by other bodies who hold funds dedicated to general or public purposes. All he has decided is, that the assessments imposed by the respondents are not applicable to promoting bills in Parliament for obtaining water from St Mary's Loch.”

The respondents (with a few exceptions) reclaimed.

Watson and Asher for them.

Solicitor-General and Macdonald in support of Lord Gifford's interlocutor.

The argument submitted for the reclaimers may be gathered from the opinion of Lord Deas.

At advising—