so far as the same or any part thereof was repealed or altered by stat. 50 G. 3. c. clxviii. or that Act, and stat. 50 G. 3. c. clxviii., except so far as the same or any part thereof was repealed or altered by that Act, and that Act should respectively be carried into execution as one Act by such Commissioners as were by stat. 50 G. 3. c. clxviii. appointed Commissioners for putting the same Act and stat. 43 G. 3. c. xxi. into execution; and by the second section of the same Act it was further enacted that the sum or sums of money which, inclusive of the said sum of 12,3127. 4s. 1d. then due as aforesaid, such Commissioners might borrow and take up at interest in pursuance of stat. 43 G. 3. c. xxi., should be any sum or sums of money not exceeding 60,000l. And by the 3d section of the same Act it was further enacted that the rates granted by stat. 50 G. 3. c. clxviii. should be the rates on the credit whereof such Commissioners should borrow such moneys. And by the 4th section of the same Act it was further enacted that such Commissioners might from time to time apply any moneys for the time being in their hands, and not required for any other purposes expressed in the said recited Acts &c., or towards repayment of any moneys theretofore borrowed and remaining unpaid, and might from time to time again borrow and take up any further sum or sums of money, but so that the total sum at one and the same time borrowed and taken up should not exceed 60,000l. And it was by the 6th section of the same Act further enacted that the provisions respecting raising money by granting annuities in stat. 43 G. 3. c. xxi. should be and were thereby wholly repealed; and by the 7th section of the same Act it was further provided and enacted that the several rates or duties authorized to be taken by E. B. & S. VOL. I. C 1861. The QUEEN V. Commissioners of Port of SOUTHAMP TON. 1861. The QUEEN v. Commissioners of Port of SOUTHAMP TON. that Act or the said recited Acts or either of them should at all times be charged equally and after the same rate and in respect of the same description of vessels and goods. And it was also enacted by the 4th section of stat. 6 & 7 W. 4. c. xxix., that all the money to be raised or received by The Southampton Dock Company by virtue of that Act, whether by way of capital or profits or otherwise, should be laid out and applied in the first place in paying and discharging all costs and expences incurred in applying for, obtaining and passing that Act, and all other expences preparatory or relating thereto, and the remainder of such money should be applied in and towards purchasing lands and making and maintaining the dock or docks and other works, and otherwise in carrying that Act into execution. The return then stated that in the year which ended the 31st of March, 1847, and in each of the eleven succeeding years mentioned in the writ, the annual income of the Commissioners for the time being in the writ mentioned arising from the rates, duties and payments by them taken and derived in respect of goods, wares, and merchandize and other commodities, and also in respect of tonnage duty and boomage duty, exceeded the sum of 10007. in each of those years [Here were set out the amounts by which that income in each of those years exceeded that sum] which excess in those twelve years in all amounted to the sum of 21,1837. ls. 8d. That the accounts of the receipts, and of the annual income as aforesaid, had from time to time been considered by the Commissioners; and that at a meeting of those Commissioners, holden on Monday the 20th day of December, 1858, at which eighteen of those Commissioners were present, it was resolved, by fourteen of the Commissioners against three, to the 1861. V. Commissioners of Port of SOUTHAMP TON. effect (one of the said Commissioners present not voting) The QUEEN that, as the gross income in the receipts of those Commissioners since the opening of the docks had been 57941. 8s. 7d., there was no ground whatever for an application to The Southampton Dock Company. That during the said period of twelve years and until the 29th day of September, 1859, the account of the several rates, duties, and payments so taken and derived by the Commissioners during the term last aforesaid, in respect of goods, wares, and merchandize and other commodities, and also in respect of tonnage duty and boomage duty mentioned or referred to in the statute in such case made and provided, had been fairly drawn up and stated according to the provisions of the statute in that behalf, ending the 29th September and the 25th March in every year of those years, and the banker who during the time aforesaid was appointed to act, and acted, as the treasurer of the Commissioners for the time being, had duly paid or caused to be paid unto the Mayor and common council in the statute in that behalf mentioned, that is to say, the Mayor, aldermen, and burgesses of the said town or borough of Southampton, one fifth part of the rates, duties and payments so taken and derived during the said period of twelve years by the Commissioners until the 29th September, 1859, in respect of goods, wares, and merchandize, and other commodities, and also in respect of tonnage duty and boomage duty, other than so much thereof as was allowed to the collector or other officer for collecting and managing, or for charges of recovering the same in manner in the statute in that behalf mentioned, in all things according to the terms of that statute; and the Mayor, aldermen and burgesses aforesaid then 1861. The QUEEN v. Commissioners of Port of SOUTHAMP TON. duly accepted such payment as and for the compensation mentioned in the 19th section of the Act in the writ first mentioned, and did not at any time until after the 25th March, 1859, that is to say, until on or about the 16th day of August, 1859, in the writ mentioned, claim any other sum of money as being due to them under either of the Acts mentioned in the writ or in this return; and at a meeting of the council of the borough, duly holden on Wednesday the 9th day of March, 1859, at which twenty-three members of the council were present, by a resolution of the council duly made at that meeting by fifteen of the members of the said council against five (three of the members of the said council present not voting), the Mayor, aldermen, and burgesses of the council resolved that, as the Commissioners had decided by a majority of fourteen to three that there was no ground for application to The Southampton Dock Company for money said to be due by them to the Commissioners, and that as their proceedings had been approved of, in one case unanimously and in the other by a very large majority, at ward meetings of the burgesses of All Saints and Saint Mary, comprising five sixths of the ratepayers of the town, there was no necessity for entertaining the subject at that meeting, &c. That the Commissioners had, from time to time, applied and disposed of the residue of the sum and sums of money raised and received as aforesaid by the duties aforesaid, or recovered for any forfeitures, to the building and repairing the piers, docks, or basin warehouse and other works, and maintaining the dock or basin and harbour of Southampton, and for placing, fixing and maintaining at all necessary places a sufficient number of booms for marking the channels enumerated in the statute in that behalf, and for the other purposes mentioned in the Acts first and second mentioned in the writ, and had also from time to time applied the moneys for the time being in their hands, and not required for any other purpose expressed in those Acts, in or towards the repayment of moneys borrowed and remaining unpaid pursuant to the provisions of the Act for amending stats. 43 G. 3. c. xxi. and 50 G. 3. c.clxviii. The return then proceeded thus: "And the Commissioners claim to be entitled, and have been advised and submit that they are entitled, to apply all such moneys for the time being in their hands, and not so required as aforesaid, in or towards such repayment as aforesaid at their discretion; and in the exercise of that discretion it has appeared to be and is the opinion, as well of the Mayor, aldermen and burgesses of the borough of Southampton aforesaid, as of the Commissioners, expressed at meetings of the said council, and of the Commissioners duly holden in that behalf, no such measures or proceedings as in the writ mentioned should be taken against The Southampton Dock Company. And The Southampton Dock Company have, after such settlements and payments as aforesaid had been made between the Cominissioners and the Mayor, aldermen and burgesses, duly applied the several moneys from time to time raised and received by the Company in carrying into execution the Act for making and maintaining a dock or docks at Southampton and the other Acts relating thereto; wherefore we have been advised and submit that the Commissioners are not, nor are we bound by the common law of the land, or by the statutes in the writ and herein mentioned, or by any other statute, to take the necessary and legal, or any measures and proceedings for obtaining and recovering payment to them by and from the said Southampton Dock Company of the other several sums of money, making 1861. The QUEEN v. Commissioners of Port of SOUTHAMP TON. |