[HOUSE OF LORDS.]

AND

Harbour Trustees - Statutory Trust - Ultra vires - Action of Interdict by Harbour Ratepayer - Title to sue.

A franchise of ferry within certain defined limits was vested by Act of Parliament in a statutory body of harbour trustees who maintained a service of steamers for ferry traffic. When the steamers were not required for ferry traffic the trustees let them out on hire for excursion trips beyond the ferry limits. A firm of shipowners, who let out steamers on excursion trips, and who paid rates to the trustees for the use of the harbour, brought an action of interdict to restrain the trustees from so using their steamers:-

Held, (1.) that the acts complained of were ultra vires; (2.) that as harbour ratepayers the shipowners had a good title and interest to sue.

Decision of the Second Division of the Court of Session in Scotland, 1914 S. C. 374, affirmed.

APPEAL from interlocutors of the Lord Ordinary and of the Second Division of the Court of Session in Scotland. (1)

The appellants were incorporated by the Dundee Harbour and Tay Ferries Consolidation Act, 1911 (1 & 2 Geo. 5, c. lxxx.), under the name of the Trustees of the Harbour of Dundee, in succession to the then existing trustees, and by the said Act the Dundee harbour and the Tay ferries within the limits therein respectively defined were vested in them.

The respondents were shipowners and shipbrokers of Dundee and they owned the steamship Marchioness of Bute, which they let out for excursion trips on the Tay during the summer and autumn months. The respondents presented a note of suspension and interdict against the appellants claiming to restrain them

(1) 1914 S. C. 374.

from engaging in passenger steamer traffic on the Tay outwith the boundaries of the Tay ferries or at all events outwith the boundaries of the harbour of Dundee as defined by the Act of 1911. The respondents were ratepayers of the harbour of Dundee and they were qualified to vote at the elections of the harbour trustees and also to be elected as such trustees.

The appellants were bound by s. 190 of the Act of 1911 to maintain a ferry service of at least sixteen trips a day from Dundee to Newport and a similar service from Newport to Dundee, and in order to ensure that the service should be regular and uninterrupted they kept three boats for Tay ferry traffic. Two of these were old boats, but the third, the Newport, was a new boat acquired by their predecessors in title in 1911, and it had ever since been employed in the ferry service. Except on Saturdays only one boat at a time was employed for the actual service of the ferries, but on Saturdays two boats as a rule were used. It was, however, necessary to keep a third boat in reserve to provide for possible accidents and for the periodical overhauling of the boats in accordance with the Board of Trade requirements. On several occasions in 1911 and 1912 the appellants let out their steamers, and particularly the Newport, when not required for ferry traffic, by the day or half-day for excursion trips on the Tay outwith the boundaries of the ferry and harbour as defined by their Act, and they claimed the right to do this. The respondents complained that this letting out by the appellants of their vessels on hire was ultra vires and that it interfered with the respondents' business. The appellants alleged (1.) that the acts complained of were within their powers and (2.) that the respondents had no title to sue. The respondents based their right to sue partly on their position as rival traders and partly on their liability as ratepayers of Dundee harbour.

After a proof the Lord Ordinary (Skerrington) granted interdict and prohibited the appellants from carrying passengers by means of the Tay ferries steamers from and to places outwith the boundaries of the ferries. The Lord Ordinary held (1.) that the acts complained of were ultra vires in respect that the appellants had no statutory power to carry passengers to any point without the limits of the ferry, and

(2.) that the respondents had a title to sue as traders complaining of competition by such ultra vires actings, but he rejected their title of ratepayers of the harbour as being too remote.

The Second Division (Lord Salvesen and Lord Guthrie, Lord Dewar dissenting) affirmed the interlocutor of the Lord Ordinary. The majority held (1.) that the respondents had a good title to sue not only as rival traders but also as harbour ratepayers, and (2.) that the traffic complained of was ultra vires inasmuch as the statute did not expressly authorize the use of boats for traffic beyond the local limits of the ferries.

Lord Dewar dissented on both points.

1914. Nov. 17, 18, 19. Younger, K.C., and Condie Sandeman, K.C. (with them W. Ingram) (the two latter of the Scottish Bar), for the appellants. 1. As to ultra vires: The question is whether the acts complained of are reasonably incidental to the powers of the trustees. A corporation may use in the way most convenient to itself property which is not for the moment being used for its special purposes, and on this principle it is competent for these trustees to let out on hire their spare vessels not used for the time being for ferry traffic. The only alternative is to lay up the vessels and let them rot. The provision in the Act fixing the limits of the ferry does not affect the question; for it was inserted merely for the purpose of regulating the monopoly. In Attorney-General v. Great Eastern Ry. Co. (1), where a question was raised as to the power of the railway company to let out its rolling stock to another company, Jessel M.R. held that the railway company was acting ultra vires, but only on the ground that the company was claiming to let out on hire, not merely its spare rolling stock, but any quantity of rolling stock which might be required for working the traffic of another railway. That decision was, however, reversed, first by the Court of Appeal and afterwards by the House of Lords. The Court of Appeal by a majority (James and Bramwell L.JJ., Baggallay L.J. dissenting) held that the letting complained of was a legitimate incident of the proper business of the company. The House of Lords held that it was

(1) (1879) 11 Ch. D. 449; (1880) 5 App. Cas. 473.

expressly authorized by the special Act of the railway company, but Lord Selborne L.C. agreed with James L.J. that whatever might be regarded as incidental to, or consequential upon, those things which the Legislature had authorized ought not (unless expressly prohibited) to be held to be ultra vires. In Foster v. London, Chatham and Dover Ry. Co. (1), which was an analogous case, it was held that a railway company had an implied power of using land acquired for the purposes of the railway in any way it pleased consistently with the purposes for which the company was constituted. In Forrest v. Manchester, Sheffield and Lincolnshire Ry. Co. (2) the exact point raised by this appeal was decided by Lord Romilly in accordance with the appellants' contention, and in Massachusetts the same point was decided in the same way by Bigelow C.J. in Brown v. Winnisimmet Co. (3) These decisions are illustrations of the principle that a corporation may employ the corporate property, when it would otherwise be lying idle and profitless, for such purposes as are not alien to its primary business: see Brice on Ultra Vires, 3rd ed., p. 135. To make these acts ultra vires they must amount to the carrying om of a separate and independent business. But the casual and occasional use of plant not required for the time being for the ferry cannot be fairly called a business at all. London County Council v. Attorney-General (4) and Attorney-General v. Mersey Ry. Co. (5) are distinguishable on this ground.

2. As to the right to sue: The respondents claim to sue as rival traders and as harbour ratepayers. Their claim as rival traders fails because mere trade rivalry gives no title to restrain ultra vires actings: Stockport District Waterworks Co. v. Mayor of Manchester (6); Pudsey Coal Gas Co. v. Bradford Corporation (7); Clyde Steam Packet Co. v. Glasgow and South Western Ry. Co. (8) Their claim as ratepayers equally fails because as ratepayers they have no vested interest in the undertaking, and they must show some sort of interest which

(1) [1895] 1 Q. B. 711.

(2) (1861) 30 Beav. 40; affirmed on appeal on different grounds, 4 D. F. & J. 126.

(3) (1865) 93 Mass. 326.

(4) [1902] A. C. 165.

(5) [1907] A. C. 415.

(6) (1862) 9 Jur. (N.S.) 266.

(7) (1873) L. R. 15 Eq. 167.

(8) (1897) 4 S. L. T. 327.

is not too remote. The possibility of a ferry-boat being lost while engaged on excursion trips and of the loss ultimately falling on the rates is too remote an interest to give the ratepayers any title to sue: Ewing v. Glasgow Police Commissioners. (1) Stirling County Council v. Magistrates of Falkirk (2) is not inconsistent with Ewing's Case. (1) Applying the test laid down by Lord Justice-Clerk Inglis in Monklands Ry. Co. v. Waddell (3), these ratepayers are not creditors in the obligations imposed by the statute. The proper party to enforce this public trust is the Crown, and this action should have been brought by the Lord Advocate: Conn v. Renfrew Corporation. (4) [Upon this point they also referred to Bell's Principles, § 2177, and McLaren on Wills, § 1750.] But assume that the Crown has no title; that gives no right to the respondents, for that would lead straight up to the actio popularis. On no ground has it been shown that the respondents have any title to sue either as traders or as ratepayers or as members of the public.

(Counsel for the respondents were called upon only on the question of the right to sue.)

Clyde, K.C., and James B. Paton (both of the Scottish Bar), for the respondents. This is not a mere case of trade rivalry. The respondents are shipowners and traders at the port of Dundee, of which the appellants are trustees; as ratepayers to the harbour they have contributed to the funds of the appellants' undertaking, and they are also qualified electors of the trustees of the harbour. As members of the interest which the appellants are appointed to protect they have a good title to restrain ultra vires actings which are hostile to that interest. The preamble of the Dundee Harbour and Tay Ferries Consolidation Act, 1911, recites that it is expedient that the constitution of the existing trustees should be amended to make them more fully representative of the persons interested in the harbour and commerce of Dundee, and further that it is expedient to authorize the trustees to make further improvements for the benefit of the trade and shipping at the harbour, and s. 10 provides that one half of the body of trustees shall

(1) (1839) Macl. & Rob. 847.

(2) 1912 S. C. 1281.

(3) (1861) 23 D. 1167, at p. 1177.

(4) (1906) 8 F. 905, at p. 911.

be elected by the persons directly interested in such trade and shipping, namely, the Chamber of Commerce, the shipowners, and the harbour ratepayers. The trustees own and exercise all their powers in trust and they are in no sense in the position of an ordinary corporation. It is true that the appellants do not hold their property for the respondents as an ordinary trustee, but the respondents as harbour ratepayers are beneficiaries of the powers of the trustees, and are entitled in that capacity to sue the appellants in respect of a breach of statutory duty which directly affects their interest. In England there may be good ground for recoiling from the notion of a private person vindicating a public trust; but in Scotland there is no form of public machinery for raising public questions, except as regards old Crown corporations, where the officers of State intervened, and in the case of public rights any member of the public may interfere if he can show some kind of interest peculiar to him: Erskine's Institute IV., i., 17; Duke of Athol v. Torrie (1); Ross v. Governors of Heriot's Hospital (2); Sanderson v. Lees (3); Grahame v. Magistrates of Kirkcaldy (4); Bruce v. Aiton. (5) Although ordinarily a corporator has no right to sue the corporation, yet where trust funds are held by the corporation a corporator may sue to prevent the maladministration of those funds: Bow v. Patrons of Cowan's Hospital (6); Rodgers v. Incorporation of Tailors of Edinburgh (7); Morrison v. Incorporation of Fleshers of Edinburgh. (8) So also an individual ratepayer has a good title to question, in an action against the borough magistrates, the legality of employing the ratepayers' money in unauthorized purposes: Stirling County Council v. Magistrates of Falkirk (9); Heddle v. Magistrates of Leith (10); Aitchison v. Magistrates of Dunbar. (11) The function of the Lord Advocate, which differs materially from

(1) (1852) 1 Macq. 65, at p. 75.

(2) (1843) 5 D. 589, at p. 609; reversed on appeal on a different point (1846) 5 Bell's App. 37.

(3) (1859) 22 D. 24, at pp. 29, 30.

(4) (1879) 6 R. 1066; (1882) 7 App. Cas. 547; 9 R. (H. L.) 91.

(5) (1885) 13 R. 358.

(6) (1825) 4 Sh. 276; (2nd ed. 280).

(7) (1842) 5 D. 295.

(8) (1853) 16 D. 86.

(9) 1912 S. C. 1281.

(10) (1897) 24 R. 662, at pp. 664, 666.

(11) (1836) 14 Sh. 421, at p. 426.

the function of the Attorney-General in England, is exhaustively discussed in King's Advocate v. Lord Douglas. (1)

Condie Sandeman, K.C., replied.

The House took time for consideration.

Dec. 10. VISCOUNT HALDANE L.C. (2) My Lords, in order to support the decision of the Court of Session the respondents have to establish that two separate questions must be answered in the affirmative. The first of these questions is whether the action complained of, the carrying of passengers by means of the Tay ferries steamers beyond the boundaries of the ferries, as defined by the statute of 1911, was ultra vires of the appellants. The second is whether, if this be so, the respondents have a title and interest such that they are entitled to an interdict. I have arrived at the conclusion that the respondents are entitled to succeed on both of these questions.

As to the first of them, I can express my opinion very shortly. It is now clear that in the case of a corporate body the test is not what was thought by Blackburn J. when, in Riche v. Ashbury Railway Carriage Co., in the Exchequer Chamber (3), he laid down as law that a general power of contracting is an incident to a corporation which it requires an indication of intention in the Legislature to take away. It is now well settled by the judgment of this House in the appeal in that case (4), and by subsequent decisions which this House has given, that the answer to the question whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of construction of language, and not of presumption.

My Lords, if this be so, I am unable to find such power conferred by the statute under consideration in the case before us. It is argued that it is reasonable that the appellants should be entitled to employ their spare steamers in a fashion which

(1) (1836) 15 Sh. 314.

(2) Read by Lord Dunedin.

(3) (1874) L. R. 9 Ex. 224, at p. 264.

(4) (1875) L. R. 7 H. L. 653.

might save wastage and earn money. The answer is that the limits of the ferries, for the service of which the appellants have authority from Parliament to maintain and use these steamers, exclude the region within which they are now claiming to use them. They have, therefore, no power to sail their steamers, as they claim the right to do, in the upper reaches of the Tay.

The circumstance that one of these steamers is normally in reserve, and that it is economically desirable to use it when the business of the ferries does not require it, cannot make what is proposed intra vires. For a power to send excursion steamers beyond the statutory limits within which alone the appellants' steamers are authorized by the statute to sail is not implied in nor is in any sense incidental to a power to sail within limits so defined.

I therefore pass to the second question. This is not simply whether the respondents as mere rival traders are entitled to bring the appellants into Court. For the Act of 1911 gives the respondents an interest of a special kind. From the preamble of that Act it is apparent that Parliament contemplated such a re-incorporation of the harbour trustees as would make them more fully representative of the persons interested in the harbour and commerce of Dundee. The harbour undertaking and also the Tay ferries were transferred to them with this in view. By s. 9 the trustees are incorporated. Sect. 10 provides for their being thirty-three in number, and including four appointed by the shipowners and six by the harbour ratepayers. By s. 19 the electing shipowners are to be British subjects carrying on business in the United Kingdom, and appearing in the books of the Custom House of Dundee as owners to the extent of 100 tons of a vessel registered at that port, or else persons owning vessels in the United Kingdom and having paid rates under the Dundee Harbour Acts amounting to at least 25l. The Act goes on to place persons resident within the burgh of Dundee, who have paid rates, exigible under the Harbour Acts, in the same position. Persons coming within these categories may be registered as electors, and may vote at the election of trustees, and he themselves elected.

My Lords, reading the sections together, I think that the effect

of the statute is to establish a trust, comprising a fund made up of rates, ferry dues, and other sources of income, as well as of sums authorized to be borrowed. I think that the whole undertaking is vested in the corporation created by the statute. By s. 186 and the following sections this undertaking is made to include the Tay ferries. It appears to me that the respondents have an interest as beneficiaries in the fund so constituted and in the undertaking. They have not only contributed as harbour ratepayers, but they have been given certain statutory rights of taking part in the management and control as electors and possible trustees. Their rights are defined and limited by the statute itself, and their interest as beneficiaries under the trust is an interest which belongs to them as members of a class.

I see no reason in point of principle to doubt that this beneficial interest in the trust funds and undertaking which are vested in the appellants as a corporation with limited powers is sufficient to enable the respondents individually to claim to restrain dealings which are ultra vires with the trust funds and undertaking. Of the powers which the harbour trustees possess they appear to me to be trustees for those who are interested in their execution and who have contributed to the funds which they administer. The harbour trustees being a statutory corporation can only execute their powers in the fashion prescribed by the statute incorporating them, and if they exceed the limits which the statute prescribes, I think that any of their beneficiaries may invoke the assistance of the Courts.

In England it may well be that it would be in accordance with the usual and proper practice to invoke in a case such as this the assistance of the Attorney-General, who, as representative of the Sovereign, the parens patriae, has the capacity to interfere. But even without invoking the Attorney-General, I think it probable that in a case such as the present a harbour ratepayer in the position of the respondents, whose interest in the undertaking and funds is apparent, ought to be treated as within the analogy of the principle which enables a single shareholder to sue in his own name to restrain an ultra vires act.

It is not necessary to decide this question of English law, and the judgment in the present case will leave it open; yet I have

thought it right to say what I have in order to show that I do not overlook the analogy. But whatever would be the position in England, the case for recognition of the individual title to sue of a person in the situation of the respondents is materially stronger in Scotland, inasmuch as the Lord Advocate does not, under the law and practice which obtain there, usually intervene as representing the parens patriae excepting when some statute casts on him a duty to do so. I have come to the conclusion that the respondents had a good title to maintain these proceedings.

I have had the advantage of reading the opinion about to be delivered by my noble and learned friend Lord Dunedin, in which he examines this question from the point of view both of principle and of authority, and I concur in the conclusions at which he has arrived. I do not think that the respondents could have made their claim successfully on the mere foundation of injury to their interests as rival traders. It appears to me that their real case is that they are beneficially and individually interested in the administration of property and the execution of powers to be carried out in strict accordance with the terms and limits prescribed by the Act of Parliament under which the incorporated trustees derive their capacity and the respondents their beneficial rights.

For these reasons I move that the appeal be dismissed with costs.

LORD DUNEDIN. My Lords, the appellants act under the powers of the Dundee Harbour and Tay Ferries Consolidation Act, 1911, and by s. 9 of that Act are incorporated under the name of the Trustees of the Harbour of Dundee. Part of their powers and duties consists in the owning and management of the ferries known as the Tay ferries, being the ferries between Dundee, on the north of the river Tay, and Newport and Woodham, on the south of the Tay.

In order to work said ferries (or, in fact, the one to Newport, the other being disused) they are empowered and bound to keep vessels, &c., and obligation is laid upon them of providing for a certain number of crossings per day. In accordance with their

rights and duty the appellants have provided themselves with three steamers. On several occasions they have used one or other of these steamers which were not actually employed in the exigencies of the ferry traffic for the purpose of conveying excursion parties for pleasure trips on the Tay, such trips extending beyond the limits both of the ferry and of the harbour. The present note of suspension and interdict was presented by the respondents, who are shipowners, against the appellants, and sought to have them interdicted from so employing the steamers belonging to them.

Interdict, as craved, was granted by the Lord Ordinary before whom the case came to depend upon being passed into the Court of Session, and on appeal to the Inner House his Lordship's interlocutor was affirmed by Lords Salvesen and Guthrie, dissentiente Lord Dewar. The ground upon which interdict was granted was that the proceedings complained of were ultra vires of the appellants. The appellants in the pleadings raised two points. They denied that the proceedings in question were ultra vires, and they also objected to the respondents' title to sue.

As regards the question of ultra vires, the opinion of the learned judges in the Courts below was in favour of the respondents, with the exception of that of Lord Dewar. With the finding of the majority I agree, and I do not think it necessary to say more than a few words. The law as to statutory corporations, whether created by a general statute which allows persons acting in accordance with the rules there laid down to procure incorporation for a company, or by a special statute providing by its own provisions for the special incorporation, was authoritatively settled by the case of Ashbury Railway Carriage Co. v. Riche (1) in this House. The appellants do not dispute that. They concede that a statutory corporation must show that its incorporating document authorizes the acts it purposes to do; but they appeal to the dictum of the Lord Chancellor (Lord Selborne) in Attorney-General v. Great Easter Ry. Co. (2) "that whatever may fairly be regarded as incidental to, or consequential upon," the things authorized are not to be

(1) L. R. 7 H. L. 653.

(2) 5 App. Cas. 473, at p. 478.

held prohibited by implication. Applying that dictum to the facts of this case, they say the use of the steamers for excursion purposes is incidental to the main purpose of the ferry.

My Lords, this can only be so if "incidental" has such a wide interpretation as this - that any use of plant which brings in money, and so assists the main undertaking, is a use incidental to that undertaking. I cannot so hold. The appellants admit that if they went in for a regular business of excursion contractors that would be ultra vires, "Incidental," in my view, means incidental to the main purposes of the main business, and making excursions with the ferry-boats beyond the limits of the ferry - a proceeding necessarily subjecting the boats to new and different risks from those to which they are subjected in the ordinary ferry business - can never be, in my view, a proceeding incidental to the business of the ferry, just because the money so earned goes into what I may call the ferry coffers.

I turn now to the question of title. The respondents maintained their title on a twofold ground. They said (1.) that they were rival traders, and that the competition of the appellants was injurious to them, as the appellants were enabled to undercut them in prices, and (2.) that they were shipowners and "harbour ratepayers" in the sense of the term as used in ss. 8 and 10 of the appellants' Act. On this matter there was in the Courts below some difference of judicial opinion. The Lord Ordinary held that there was a good title under heading (1.) but not under heading (2.). In the Inner House Lords Salvesen and Guthrie held that the title was good, Lord Dewar that it was bad, under both heads.

In the argument before your Lordships' House the respondents' counsel abandoned his contention under head (1.). I think he was right in doing so. I agree with the judgment of Lord Low on this point in the Glasgow Steam Packet Case (1), which is in accordance with the principle given effect to in the Stockport Case (2) in England. In the phraseology of Scottish law, when a complainer can only say that he is a rival trader and nothing more, he qualifies an interest but not a title.

By the law of Scotland a litigant, and in particular a pursuer,

(1) 4 S. L. T. 327.

(2) 9 Jur. (N.S.) 266.

must always qualify title and interest. Though the phrase "title to sue" has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that any one of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies.

The simplest case of all is where a person is the owner of something. That legal relation of ownership gives him the right to sue all actions which deal with the vindication or defence of his property. Next in simplicity comes contract, where the relation of contract gives the one party a right to insist on the fulfilment of the contract by the other. Generally speaking, persons who are not parties to the contract cannot sue upon it, but this rule suffers exception when there has been created what is known as a jus quaesitum tertio. A well-known instance of this will be found in the right of feuars to enforce building stipulations contained in the titles of other feuars, the law as to which was authoritatively explained by Lord Watson in the well-known case of Hislop v. MacRitchie's Trustees. (1) This class of case also affords excellent examples of how there may be title without interest, Gould v. McCorquodale (2), and of the way in which interest will be judged of, Earl of Zetland v. Hislop (3) and Mactaggart & Co. v. Roemmele. (4)

It would be useless, even if it were possible, to go on to enumerate in detail the various cases in which a title to sue may be found, so I pass at once to the class of cases which are analogous to the present. If any persons are in such a relation as to constitute them trustees, or if, without being technically trustees, they have a fiduciary duty to others, those persons to whom they owe a fiduciary duty will have a title to sue to prevent the infringement of that duty. Infringement of duty

(1) (1881) 8 R. (H. L.) 95.

(2) (1869) 8 Macph. 165.

(3) (1882) 7 App. Cas. 427; 9 R. (H. L.) 40.

(4) 1907 S. C. 1318.

may consist in wrong dealing with property. These propositions are equally true whether the trustees or quasi-trustees are individuals or voluntary associations or corporations.

Instances of such title to sue having been given effect to are to be found in numberless cases. Thus, for instance, in Bow v. Patrons of Cowan's Hospital (1) a guild brother was allowed to sue the trustees for reduction of an improper sale of property, his title being rested on the fact that under the trust a charity was to be maintained for decayed guild brethren, and although he had an appointment as one of a committee appointed by all the guild brethren, his title as an individual was affirmed by both Lord Alloway and Lord Justice-Clerk Boyle. In Rodgers v. Incorporation of Tailors of Edinburgh (2) a widow was allowed to raise the question of the appropriation of funds which would prevent her having the chance of her annuity being increased - a judgment which was practically repeated in Morrison v. Fleshers of Edinburgh. (3) In Baird v. Magistrates of Dundee (4) two burgesses were allowed to call the magistrates to account in their capacity as administrators of a mortification fund established for inter alia the educating the sons of poor burgesses. In Bruce v. Aiton (5) a fisherman who used a harbour was allowed to sue the proprietor of the harbour who levied dues thereon under an Act of Parliament for declarator that the proprietor was bound to keep the harbour lighted.

These cases I have quoted are not at all an exhaustive list, but are to be regarded merely as samples of the various relations in which title to sue has been maintained.

The only difficulty, and in truth the whole argument of the appellants depended upon this, arises out of the decision of this House in Lord Cottenham's time of the case of Ewing v. Glasgow Police Commissioners (6), and consists not so much in a misunderstanding of the case as in the attempt to make it support a principle which it will not bear. Some preliminary explanation is necessary.

From the time of their creation the Royal burghs in Scotland had possessed lands and other property which were designated

(1) 4 Sh. 276, 2nd ed. 280.

(2) 5 D. 295.

(3) 16 D. 86.

(4) (1865) 4 Macph. 69.

(5) 13 R. 358.

(6) Macl. & Rob. 847.

by the name of the Common Good. The Royal burghs are corporations by Royal charter - it is not material save for accuracy's sake to note that in some cases there were subsequent Acts of Parliament - and the provost and magistrates of these burghs held the common good for the benefit of the inhabitants. The magistrates, however, were left as judges of what was for the good of the inhabitants, and, sometimes from necessity and sometimes from less cogent motives, as time went on much of the common good of the burghs of Scotland was alienated. Indeed, if the state of affairs to-day is taken it will be found that in the case of most of the Royal burghs in Scotland by far the greater part of the common good has been dissipated.

Now it was to be expected that such transactions would be objected to by burgesses who had no part in them, and a good many cases are to be found in the books of attempts to call the magistrates to account. The decisions were conflicting, of which a somewhat naive account may be found in the note in Brown's Synopsis, vol. 1, p. 402, as to the decision in Lang and Burgesses of Selkirk v. The Magistrates in 1748 (1); "A very elaborate argument, tending to show that private burgesses have neither title nor interest to pursue their magistrates for misapplication of the burgh revenues, is to be found in this case. The Court pronounced opposite Judgments; but, before a final decision, the suit was compromised." At last, however, when the time came that the old hearings in praesentia, with the power of presenting unlimited reclaiming petitions, were brought to an end, and the Court divided into two Divisions, consisting of an Outer and an Inner House, and the decisions of the Divisions made final, save as appealable to the House of Lords, the controversy was finally settled by the case of Burgesses of Inverury v. Magistrates (2), which settled that an individual burgess has no title to call on the magistrates for a general accounting as to the common good.

Then in 1837 came the case of Ewing v. Glasgow Commissioners of Police. (3) Glasgow had by this time obtained a Police Act, which imposed certain duties on the commissioners

(1) Mor. Dict. 2515.

(2) Dec. 14, 1820, F. C.

(3) (1837) 15 Sh. 389.

established under it and gave powers of assessment. These commissioners opposed a Water Bill promoted by certain water companies in Parliament, and paid the expenses of the opposition out of the funds in their hands. Ewing, a resident in Glasgow, and as such liable to assessment, raised with others a suspension against the commissioners seeking in general terms to have them interdicted from thus applying money raised by assessment. At the same time they raised an action of reduction of the resolutions by which the commissioners had authorized the payment of the money with petitory conclusions attached, ordering them personally to pay back the moneys into the funds of the police establishment.

It is worthy of notice that in the discussions which followed, the Bill of Suspension seems to have got overshadowed by the action of reduction and payment, and got lost sight of. The Court of Session treated the matter somewhat strictly upon the conclusions in the reduction action; and the ground of judgment which sustained a plea of no title to sue is thus put by Lord Medwyn (1): "They (the pursuers) do not seek repetition to themselves, but into the fund. .... This is not a question of levying, but of misapplying funds levied for another purpose; and the levy for next year is not objected to." With deference to Lord Medwyn, though this might be said of the conclusions of the reduction, it could not, I think, be properly said of the crave of the Bill of Suspension. The case then came to this House, and was disposed of by Lord Cottenham. The cases cited were entirely the common good cases and none else. The judgment was affirmed, stress being laid on the decision of Magistrates of Inverury (2) above mentioned.

Now the underlying view of the common good cases was undoubtedly this, that looking to the origin of the common good, and the wide range of discretion given to the magistrates in its management and application, the Crown, as represented by the Exchequer, could alone institute what one might now call an audit, and that no private burgess could be allowed to do so. Seeing that no such origin could be attributed to funds raised by assessment under a Police Act, and seeing that the Exchequer had never had, or proposed to have, any visitatorial position as to

(1) 15 Sh. 389, at p. 397.

(2) Dec. 14, 1820, F.C.

said funds, (in the Act itself powers of objection were given to specific bodies and persons, and the Court of Exchequer was indicated as the Court before which certain of these objections should be brought,) it is not altogether to be wondered at that doubts had been expressed as to the expediency of the judgment thus pronounced. See Lord Kyllachy in Conn v. Magistrates of Renfrew (1) and Lord Johnston in Stirling County Council v. Falkirk Magistrates. (2)

But the decision is a decision of this House of old standing, and cannot as a decision be interfered with. There is, however, no reason to take it as deciding any more than it necessarily decided, i.e., in view of the particular conclusions contained in that action. The appellants, however, wish to extract from that judgment the general proposition that if it is a corporation which commits an act of ultra vires no one can complain except the Crown, unless the act complained of has a direct injurious effect on some patrimonial interest of the complaining party.

My Lords, I think no such proposition can be taken from it, and the strongest argument against it is that the decision has never been so understood by the learned judges of the Court of Session. The case of Rodgers (3) already cited was decided within three years of the decision in Ewing. (4) Now the interest of the widow in that case was not a direct interest, it was only contingent. In Baird v. Magistrates of Dundee (5), also cited, the interest was still less direct - it was the case of allowing individual burgesses to compel the magistrates to act up to their fiduciary duties.

Nor were these cases left to stand alone. In Sanderson v. Lees (6) an individual burgess vindicated the right of the golfers of Musselburgh - he being after all only a potential golfer himself; and lastly in Grahame v. Magistrates of Kirkcaldy (7) an individual burgess vindicated the right of recreation and bleaching, and Lord Watson in this House upheld his title, while

(1) 8 F. 905.

(2) 1912 S. C. 1281.

(3) 5 D. 295.

(4) Macl. & Rob. 847.

(5) 4 Macph. 69.

(6) 22 D. 24.

(7) 9 R. (H. L.) 91.

pointing out that, in the matter of a general accounting for the common good, the Magistrates of Inverury Case (1) was still law. Finally, in the case of Leith Dock Commissioners v. Magistrates of Leith (2), the Leith Dock Commissioners, in their capacity as ratepayers, presented a suspension against the proposed charging against the public health assessments in Leith of the expenses of unsuccessful parliamentary opposition to a Bill promoted by Edinburgh. Interdict was granted by the Court of Session, and on appeal to this House the appeal was dismissed. (3) It is worth noticing that the suspension in this case is practically indistinguishable from the neglected suspension in Ewing's Case. (4) The report does not show it, but I have looked up the pleadings, and I find that no title and no interest were both pleaded by the defenders, and Lord Watson delivered the leading judgment. It is not likely that he had forgotten what he said in Grahame's Case (5) as to Magistrates of Inverury. (1)

My Lords, the reason for this attitude, I think, is not far to seek. At the time of Ewing's Case (4) the doctrine of ultra vires had not been developed as it came afterwards to be, and the point was looked at from the point of view of a title to call to a general accounting. But a somewhat prophetic view may be found, in the opinion of Lord Glenlee, in the case of Aitchison v. Magistrates of Dunbar (6), decided three years before Ewing. (4) The action was brought by burgesses and town councillors against the magistrates to test the legality of an alienation of the burgh property. Lord Glenlee said: "I do not rest on the circumstance that they are members of the town council, but that they complain as burgesses of the illegality of an alienation of the town's property. As the illegality of the act is asserted here I am not disposed to carry too far the distinction between burgesses and town councillors. I am inclined to think that at common law burgesses have an interest and title to look after matters of this sort."

This case was disposed of by Lord Cottenham in Ewing's Case (4) by remarking that there was a title in a minority of

(1) Dec. 14, 1820, F. C.

(2) (1897) 25 R. 126.

(3) [1899] A. C. 508; 1 F. (H. L.) 65.

(4) Macl. & Rob. 847.

(5) 9 R. (H. L.) 91.

(6) 14 Sh. 421, at p. 426.

the town council to challenge an act of the magistrates and council, and that the Lord Justice-Clerk put his opinion on that ground. But while that is true it does not notice the distinction between a calling to account and an objection to a specific act, and while I consider we cannot go back on the judgment in Magistrates of Inverury (1), I think it is clear from the latter cases that even if it was a matter of the common good there might be room for distinction between objection to one specific ultra vires act and the general complaint of maladministration. A trace of such a distinction may be found in the old case of Burgesses of Irvine (2), mentioned in the argument in Inverury (1), but for the reason I have given it was not at that time sufficiently appreciated. The decision in Magistrates of Leith (3) was followed in the recent cases of Stirling County Council v. Falkirk Magistrates (4) and Farquhar and Gill v. Aberdeen Magistrates (5), in which cases the case of Ewing (6) was disinterred and sought to be overpled as here.

My Lords, I have taken no notice of the English authorities on which the appellants found. The question of title to sue in England bristles with difficulties having their origin in the rigid rules of common law actions, with the subsequent modifications of the results of these rules either by statute or by the concomitant working of the equity jurisdiction. This fact makes these authorities of no assistance in Scottish procedure. And further, the Attorney-General, so far as his powers and duties are concerned, has no nearer relation to the Lord Advocate than is contained in the fact that the two officials are dubbed with the common nomenclature of law officers of the Crown. No case in practice has been cited where the Lord Advocate has ever pursued an action of this sort.

I now turn to the circumstances of this case. As I said at the outset, I do not think any general pronouncement can be made as to when there is title and when there is not. But when I find that the respondents in the capacity of harbour ratepayers are

(1) Dec. 14, 1820, F. C.

(2) (1752) Elchies, "Burgh Royal," No. 31.

(3) 25 R. 126.

(4) 1912 S. C. 1281.

(5) 1912 S. C. 1294.

(6) Macl. & Rob. 847.

members of the constituency erected by the Act of Parliament to elect the trustees, and as such are also persons for whose benefit the harbour is kept up, I cannot doubt that they have a title to prevent an ultra vires act of the appellants, which ultra vires act directly affects the property under their care. It is not only that loss of that property through improper acting may have the effect of imposing heavier rates on the respondents in the future, but, in the words of Lord Johnston in the Stirling County Council Case (1), as they have contributed to the funds which bought the property, "they have an interest in the administration of a .... fund to which they have contributed," and a title flowing from that position and interest.

For these reasons I concur with the motion proposed by the Lord Chancellor.

LORD ATKINSON. My Lords, I have had the pleasure and advantage of reading carefully the judgment which has just been read by my noble and learned friend Lord Dunedin. I concur in it and have nothing to add.

LORD PARMOOR. My Lords, the appellants in this case raised two points. First, that the Acts complained of were not ultra vires, and secondly, that the respondents were not competent parties to proceed against them.

I propose to limit my opinion to the first point. The appellants are the trustees of the Harbour of Dundee and derive their authority from the Dundee harbour and Tay Ferries Consolidated Act, 1911. This Act vests the Tay ferries and certain other ferries and their rights in the trustees, and gives them power to work the ferries and to keep a sufficient number of vessels for that purpose, with an obligation to provide not less than a minimum number of trips between Dundee and the ferry harbour of Newport. The trustees are working the ferries themselves and keep three vessels, which are sufficient for the service of the ferries, but are not all required to be in use at the same time. During 1912 the appellants occasionally let out one of the ferry steamers for excursion parties to points outwith the limits of the

(1) 1912 S. C. 1281, at p. 1293.

harbour and of the ferries as defined by the Act. It is in respect of this occasional letting out of one of the ferry steamers that the appellants are charged with acting ultra vires.

It is settled law that a body such as the appellants, constituted by statute, have no authority except such as Parliament has conferred upon them, and that they must find a sanction for any powers which they claim to possess in their incorporating statute or statutes. These powers may be expressly authorized or implied as fairly incidental to what is expressly authorized. It is within this border line that the difficulty of definition usually arises. There is no question in the present case of express authority. The appellants are only empowered to use the ferry vessels within geographical limits, and the excursion trips to which exception has been taken are outwith these limits. I think further that the limitation of the powers within geographical limits is in itself sufficient to negative any implication that there is authority to let out their steamers outwith the specified area.

Mr. Younger, in attempting to bring the acts complained of within the statutory authority of the appellants as fairly incidental to their express powers, relied on two arguments, neither of which can, in my opinion, be maintained. He says that the letting of the ferry steamer for excursion purposes outside the statutory area is fairly incidental to the powers expressly conferred on the appellants, in that it enables them to make a profitable use of surplus plant, not in actual use for ferry purposes at the time, but necessary to keep as a stand-by, to ensure that the appellants can fulfil their statutory duties. Unless the convenient or profitable use of surplus plant in itself is sufficient to justify the letting out of the steamers for excursion purposes, such a use of them is in no sense fairly incidental to the exercise of the powers expressly given to work a ferry within a defined area.

I think that the principle that a corporation of limited authority, if it has surplus plant, can use that plant in any way it thinks profitable, so long as such use is not in contravention of its statutory duties, is quite untenable. It makes no difference whether the letting out of the steamers is occasional or such as

to constitute a regular business, since in neither case is there statutory authority, and such authority is the only source from which the right claimed can be derived. The case of Forrest v. Manchester, &c., Ry. Co. (1) was quoted in favour of the appellants, but the decision in that case has not been followed, and it cannot be accepted as an authority.

The second argument on which Mr. Younger relied was based on a suggested analogy between surplus plant and surplus land, when such land had been acquired for statutory purposes, but was not being wholly used for such purposes. I regard with suspicion any argument founded on analogy; but the answer is that the possession of surplus land does not, any more than the possession of surplus plant, extend the ambit of the powers conferred on a company by statute, and that no company could on such land set up a business, or do any act, which the incorporating statutes had not sanctioned, either expressly or by implication.

The case relied upon was Foster v. London, Chatham and Dover Ry. Co. (2) In this case the railway company had let the land under the arches, over which the railway was carried on a viaduct, upon short tenancies for shops or business purposes. There was no express statutory sanction or limitation, but it was held that by fair implication the company was authorized to use the land which it had acquired under its statutory powers for any purpose which did not infringe the rights of others, and which were not inconsistent with the purposes for which the company was incorporated. The right of railway companies, as owners of land acquired under statutory powers, to use such land subject to the above limitations gives no support to the proposition that surplus plant, when not in actual use for statutory purposes, may be used for any profitable purpose which the corporation may think fit, irrespective of either the rights conferred, or the limitations imposed, by the incorporating statute or statutes.

My Lords, on the second point, which is a question of Scottish procedure, I concur in the opinion expressed by Lord Dunedin. The position of the Attorney-General in England differs so materially from that of the Lord Advocate in Scotland that it is

(1) 30 Beav. 40.

(2) [1895] 1 Q. B. 711.

difficult to apply the English precedents to the conditions which prevail in Scotland. Should a similar case arise in England I reserve my judgment. In my opinion the appeal should be dismissed with costs.

Agents for appellants: Beveridge, Greig & Co., for J. K. & W. P. Lindsay, W.S., Edinburgh.

Agents for respondents: Thompsons, Quarrell & Jones, for Maxwell, Gill & Pringle, W.S., Edinburgh.