Scottish Court of Session Decisions

By the act 3 and 4 Will. IV., c. 76, passed to alter and amend the laws for the election of the magistrates and councils of royal burghs, it is provided (§ 1) “that from and after the period when this act shall come into operation, the right of electing the town councils in all such burghs respectively (except in those contained in schedule F. ¹ to this act annexed), shall be in and belong to all such persons and to such only (except as herein-after excepted), as are or shall be qualified, as owners or occupants of premises within the royalty, whether original or extended, of any such burgh, to vote in the election of a member of Parliament for such burgh by virtue of an act passed in the second and third year of the reign of his Majesty King William IV., intituled an Act to amend the representation of the people in Scotland, and as are duly registered as such voters in the registers by the said recited act appointed to be kept, and also in all such persons who are possessed of the qualification described in the said recited act, in respect of the property or occupancy of any house or other subject therein described of the value thereby required, within the royalty of any burgh not now entitled to send members to Parliament.” It is further enacted (§ 4) “that the respective town-clerks of each royal burgh shall, on or before the twentieth day of October in the present, and on or before the sixteenth day of September in all future years, make up and complete a list or roll of persons entitled to vote in the election of the common council of such burgh in manner following: videlicet, the town-clerk of each burgh which, in virtue of the said recited act, sends either severally, or in combination with any other burgh or burghs, a member or members to Parliament, shall make up and complete

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¹ schedule F. refers to certain small burghs in which no change was to be made in regard to the mode of election.

such list by transferring from the Parliamentary register for such burgh to such list or roll the names of all the voters contained in such register entitled to vote in the election of a member of Parliament as are so registered in respect of properties situated within the royalty, whether original or extended, of such burgh, without requiring any claim, or admitting any objection against the persons so registered; and the respective town-clerks of such of the royal burghs as do not now send or contribute to send a member to Parliament, shall in like manner make up a complete list or roll of all the persons, qualified in manner aforesaid, who shall have been admitted as electors by the chief or senior magistrates of such burghs respectively in manner herein-before directed.” By the 5th section it is provided, in regard to the annual correction of the lists in such burghs, that each town-clerk shall “correct and complete his list of electors, on or before the sixteenth day of September, by removing therefrom the names of such as may have died, and adding the names of those who may have been inserted in the register appointed by the said recited act since it was made up in the previous year, in respect of premises situate within the royalty of any such burgh.” With reference to the royal burghs not sending a member to Parliament, the act provides (§ 6) that if either party shall be dissatisfied with the decision of the provost or chief magistrate and assessor admitting or rejecting any claimant for the right of electing councillors, it shall be competent to such party to appeal to the Court of Review appointed by the Reform Act for deciding upon appeals as to the registration of voters for members of Parliament for the district within which such burgh may be situate; “and upon production of the judgment of such Court, or an extract thereof, to the town-clerk, keeper of the list or roll of electors of such burgh, such town-clerk shall forthwith, where necessary, alter and correct such list or roll in accordance with the judgment of such Court.”

In reference to the first election under the act, § 8 provides, that “upon the first Tuesday of November next the electors qualified and entered in the list or roll made up as aforesaid shall, in each of the said royal burghs not contained in schedule (F.) to this Act annexed, choose from among such of their own number as either reside within the boundaries assigned to such burgh by the said recited act, or as may carry on business or reside within the royalty thereof, such a number of councillors as by the set or usage of each burgh respectively at present constitutes the common council of such burgh.” By § 15, it is enacted, that upon the first Tuesday in November, 1834, and in every succeeding year, the electors in such burghs shall “elect, in manner herein-before prescribed in relation to the first election under this act, one third part, or as nearly as may be one third part, of the council of such burghs, in the place of the third thereof who shall, as herein-after directed, go annually out of office.” By § 27, provision is made for the case “where any royal burgh shall, in consequence of the decision of a court of law or otherwise, be without any legal council or magistracy at the time when this act comes into operation, or at any future time;” and by § 34, it is enacted that official persons wilfully contravening or disobeying the provisions of the act “shall be liable to be sued for such offence in the Court of Session by any person aggrieved for the penal sum of three hundred pounds; which sum, or any smaller sum which may be assessed by the jury in any such action, the defender, upon conviction, shall pay to the pursuer with full costs of suit.” It is likewise enacted (§ 37) “that no irregularity or nullity in the election of any councillor or magistrate shall in any case after the passing of this act annul or affect the election of other councillors or magistrates not liable to the same grounds of objection, but those particular elections only in which such irregularity or nullity shall have occurred.”

The act 2 and 3 William IV., c. 65, introducing the electoral qualification referred to in the 1st section of the above-mentioned statute, prescribes a mode of ascertaining that qualification by means of an annual registration, to be conducted in the manner therein pointed out by the sheriffs of the respective counties. Each sheriff is enjoined (§ 22) to hold an annual court of registration, both for county and city voters, in which he is to decide all claims and objections “on or before the 15th of September in each year,” and to have his registers finally corrected and completed by that day; “and after the said 15th day of September no change shall be made by any sheriff on his registers for that year, except only in consequence of the judgment of one or other of the courts of review herein-after provided.” The sheriff's judgments, granting or refusing registration, as long as they remain unaltered, are to be conclusive of the rights of parties (§ 23); but an appeal is declared competent to the courts of review provided by the act to sit immediately thereafter. In regard to these, it is enacted (§ 25) “that the judgments of the said courts of review shall in all cases be final and conclusive, and liable to no process of review, and shall, whenever they reverse or vary the judgments of the sheriff appealed from, be warrants to him to alter or correct his registers in conformity thereto; and he shall, on such judgments being made known to him by the parties, alter and correct such registers accordingly.” It is also provided that the reviewing sheriffs are finally to determine all cases brought under appeal, on or before the 20th of October in each year.

At the registration for the city of Glasgow in 1837, the respondent M'Gavin having claimed to be enrolled as a Parliamentary elector, his claim was admitted by the sheriff. The sheriff's sitting continued till the 15th of Septmeber (the last day allowed by the act), and as soon thereafter as possible (but not till after the 16th of September had elapsed) the town-clerks made up the burgh register of electors by transfering to it from the Parliamentary register the names of the voters in respect of premises within the royalty found qualified by the sheriff on and before the 15th. M'Gavin's claim was afterwards rejected by the court of review, which closed its sittings before the 20th October. His name was accordingly struck out from the Parliamentary register of electors. No alteration was made by the town-clerks on the burgh register in consequence of the proceedings of the appeal court.

In anticipation of the annual election of a third of the council, which was to take place on the 7th November, a contest for the office of councillor had commenced in the first ward of the city of Glasgow, M'Gavin and Mr David Stow being the opposing candidates. On the 4th November, a schedule of protest was served by the suspender Monteith on behalf of himself and certain other voters in Stow's interest on the town-clerks, requiring them immediately to expunge from the burgh register the names of M'Gavin and other parties whose claims had been rejected by the court of appeal. This requisition the clerks declined complying with. ^* An intimation and protest by the same parties was the same day served upon M'Gavin, holding him out as disqualified from being voted for and protesting against his induction.

On the 7th, Monteith and certain parties, including Stow, all “duly-qualified voters in the parliamentary and municipal elections for the city of Glasgow,”and also two other parties, present councillors in the town council of Glasgow, presented a bill of suspension and interdict against M'Gavin, concluding to have the present attempt by him to encroach upon the rights of the complainers by intruding into the town council, or acting as a councillor, suspended and interdicted, and himself prohibited from entering upon the office, or so acting, and also to have the provost or senior magistrate of Glasgow interdicted and discharged from declaring the election to have fallen upon M'Gavin, or recognising him as so elected, and the magistrates and council from receiving him as a member thereof.

The reasons of suspension were as follows:—

1. That the municipal lists ought, with reference to the present elec–

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^* Their answer to the protest contained the following statement:—“In terms of the 75th section of the Parliamentary Reform Act, whenever the Court of Appeal reverses or varies the judgment of the sheriff, the Parliamentary register must be altered and corrected accordingly, but there is no such direction or authority given in the Burgh Reform Act for the town-clerks of the burghs contained in the Parliamentary Reform Act to alter the burgh list or roll directed to be made up on or before the 16th of September annually.

“In these circumstances the town-clerks, though of course anxious to discharge to the best of their ability the ministerial duties imposed on them, consider that under the terms of the statutes before referred to they are not empowered, and would not be warranted for the present year to make any alteration whatever upon the list or roll for the burgh, as compiled from the Parliamentary register, as adjudicated by the sheriff prior to the 16th of September, on or before which day the town-clerks are directed to make up or complete the said list or roll.”

elections under the new system, has been held to be incompetent, ¹ and (whatever may be said of reduction) procedure by suspension and interdict is equally incompetent to set aside the election of a councillor. At common law this is an incompetent mode of reviewing the proceedings of town councils, or of any other public bodies in filling up vacancies. ² But supposing it were competent, the remedy of suspension has not been timeously used, the act of election having been completed, by the result of the polling on the 7th, and the declaration on the 8th November, before notice was given of the suspension. Taking the analogy of the old burgh elections, nothing more would have been required to complete the election and validate the actings of a councillor than what took place here. ³ To sustain the competency of the present suspension and interdict would, besides, be highly inexpedient, with reference to its effect on the validity of the election of the other new members of council, and on the election of the magistrates, which requires the council to be complete in number.

2. On the merits, the complainers assume that the first section of the Act 3 and 4 William IV. c. 76, by which the parliamentary franchise is made the basis of the qualification for burgh electors, is to override all the other provisions of the act; but the present question must be ruled by the subsequent sections, and especially by the fourth, wherein express directions are given for carrying the new system of municipal elections into effect. The fourth section provides, that on or before the 16th of September, the town-clerk shall “make up and complete” a list of persons entitled to vote in the election of councillors, in a certain manner, viz., by transferring from the parliamentary register the names of all persons there entitled to vote in the election of a member of parliament. In terms of the eighth section, the electors entered in this list are empowered to choose or be chosen councillors at the ensuing elections in November; and consequently, M'Gavin's name having been inserted in the list so made up, and completed by the town-clerks after the Sheriff's sitting in September last, he possessed the municipal qualification, and was eligible to the office of councillor. The statute contains no authority or warrant for a correction of this register by the town-clerks subsequent to the sitting of the Court of Appeal, and their duty being merely ministerial they were bound to abide by the letter of the statute. There may be a blunder in the Act, or a want of the requisite machinery, but it is not the part of an officer acting under the statute to supply such defect. A direction to correct the burgh-register with reference to the judgments of the Appeal-Sheriffs might have been given in a few words, and the

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¹ Thomson v. Magistrates of Wick, July 8, 1836, ante, XIV. 1118.

² Drysdale v. Magistrates of Kirkaldy, June 30, 1825, ante, IV. 126 (new edition, 128); Orr v. Vallance, December 2, 1831, ante, X. 93.

³ Banks v. Jaffray, June 6, 1792, M. 9384.

tions, to have been framed in such a manner as to correspond with the judgments in the appeal court, and with the actual state of the parliamentary register.

2. That in particular, M'Gavin is not qualified to be an elector, nor consequently a councillor, in reference to the municipal franchise, which is conferred solely and exclusively on those possessing the parliamentary franchise and registered in the parliamentary register, he being not a person possessed of the parliamentary franchise, or registered in the parliamentary register.

The Lord Ordinary pronounced the following interlocutor, with the subjoined note ^*;—“ Edinburgh, 7th November, 1837.—The Lord Ordinary having considered this bill—Appoints it to be intimated, and answers thereto to be lodged betwixt and Wednesday the 15th current; and in respect of the novelty of the question, and of its importance, as possibly affecting the validity of the elections and other acts of the new council, when completed, ordains the bill and answers to be printed, in order that the case may be reported to the Inner-House as soon as possible, reserving consideration of the interdict till the bill and answers are advised.”

The elections proceeded on the 7th, and M'Gavin was elected councillor by a majority in the first ward. On the following day, the senior magistrate having had the poll-books cast up, publicly declared M'Gavin to be duly elected. He thereupon received a written intimation from the town-clerk of his having been so elected, and a requisition that he should, in terms of the statute, appear and declare his acceptance of the office. On the same day, the bill of suspension was intimated to the senior magistrate, and also to M'Gavin. On the 9th, M'Gavin formally declared his acceptance of the office of councillor, and took the oaths.

Answers having been lodged to the bill, the Lord Ordinary reported the case, when two questions arose for discussion—1st, as to the competency of the application; and 2d, as to the validity of M'Gavin's election.

Pleaded for M'Gavin;—

1. Summary process by petition and complaint, in the case of burgh

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^* “ Note.—The Lord Ordinary does not think that he is entitled to give an interdict de plano against the reception of any councillor, as that might perhaps suspend the election of any new magistrates necessary to be supplied, and all the other acts of the new council, while such a proceeding might lie attended with consequences, in a populous community like Glasgow, which cannot at present be anticipated.

“But all parties will be aware that by the mere presentment of this bill the question as to Mr M'Gavin's eligibility is fairly mooted and rendered litigious; and if the Court next week should grant an interdict partibus auditis against Mr M'Gavin's acting, a serious question may arise as to the validity of any elections or other corporate acts carried by his vote. Keeping that contingency in view, the council will do well to confine their proceedings to such acts as the police of the city and the necessary business of the corporation require, till the opinion of the Court is obtained, after a full hearing of both parties on the bill and answers.”

circumstance of no such direction being given, while the town-clerk of a burgh not returning a member to Parliament is expressly authorized (§ 6.) to alter his register conformably to the judgments of the Court of Appeal thus provided, strengthens the view now contended for.

Pleaded for Monteith, &c.—

1. The proceedings of every public body alleged to have committed wrong in the matter of elections are subject to the review of the supreme Court, unless that have been excluded by statute; in the present instance such review is contemplated by the Municipal Reform Act, and particularly by the 37th section. But if the matter in question is cognizable by this Court, a petition and complaint having been held to be incompetent, suspension and interdict is the only mode of obtaining summary and practical redress, or of preventing an injury being committed, of which the consequences may be irreparable. The right of redressing implies the right of preventing wrong; and this can only be done by suspension, which is a remedy competent at common law in such a case as the present, and in the case of any public officer who has not yet entered upon the discharge of his functions. ¹ In the present case a protest was served on M'Gavin before the election, and the bill of suspension was presented and intimated to him before he had declared his acceptance or taken the oaths. ² The wrong lay with him in accepting the office under these circumstances, being disqualified; and in so doing he exposed himself to the consequences of this proceeding. The election of the other councillors is not liable to be disturbed by the election of a particular councillor being found to be null; ³ and such nullity will not affect the election of magistrates nor any question not carried by the vote of the party objected to. Failing M'Gavin, Stow would fall to be elected, though a declarator might be necessary for his admission.

2. According to the first and leading provision and whole spirit of the Act 3 and 4 William IV., c. 76, the right to vote for a member of Parliament is made the condition and basis of the municipal franchise, the qualification of a burgh elector and consequently of a party entitled to be elected a councillor being expressly declared to be identical with the qualification of a Parliamentary elector, the clause regarding the right to elect and be elected expressly requiring that the parties should not only be “entered on the list or roll,” but should also be “qualified,” as before provided, “to vote in the election of a member of Parliament for such burgh” It follows that the Appeal-Sheriffs having prior to the election of councillors decided that M'Gavin was not so qualified, he could not

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¹ Bucknay v. Ferrier, March 10, 1753 (F.C.); Chalmer v. Magistrates of Edinburgh, July 24, 1782 (F.C.); Watson v. Glasgow Police Commissioners, March 10, 1832 (ante, X., 481.)

² See Watson, supra.

³ 3 and 4 Will. IV., c. 76, § 37.

possibly possess the burgh franchise, and his subsequent election was null and void. The existence of his name on the town-clerk's list, as made up after the 16th September, could not create in his person a qualification which did not in reality exist. With reference to this question, the whole statute is to be construed together; the first section rides over the rest of the Act, and guides its interpretation, where there is doubt or obscurity. The clauses relating to ministerial or mechanical details are to be construed in reference and subordination to the main enactment, and no construction of these ought to be adopted, which would nullify the essential provision as to the basis of the municipal franchise. Those clauses, therefore, relating to the town-clerk's lists, must be construed with this qualification, that the lists are only to subserve the undoubted object of the statute, and to carry out the proposed identity between the Parliamentary and the municipal franchise, but not to establish the municipal franchise in the person of any one who is not possessed of the Parliamentary franchise.