Scottish Court of Session Decisions

Section 2 of the Bankruptcy Act 1883 (46 and 47 Vict. c. 52) provides—“This Act shall not, except in so far as expressly provided, extend to Scotland or Ireland.” Section 32 provides — “(1) When a debtor is adjudged bankrupt, he shall, subject to the provisions of this Act, be disqualified from …( d) being elected to or holding or exercising the office of mayor, alderman, or councillor; (2) the disqualification to which a bankrupt is subject under this section shall be removed and cease if and when ( a) the adjudication of bankruptcy against him is annulled, or ( b) he obtains from the Court his discharge, with a certificate to the effect that his bankruptcy was caused by misfortune without any misconduct on his part.” Section 34 provides—“If a person be adjudged bankrupt whilst holding the office of mayor, alderman, or councillor … his office shall thereupon become vacant.” (3) The disqualification imposed by this section shall extend to all parts of the United Kingdom.” Section 2 of the Bankruptcy Frauds and Disabilities (Scotland) Act 1884 (47 and 48 Vict. c. 16) provides—“This Act shall commence and come into operation from and immediately after the thirty-first day of December Eighteen hundred and eighty-four.” Section 5 provides—“In the application of section 32 of the Bankruptcy Act 1883 to Scotland the following provisions shall have effect—(1) The expression ‘adjudged bankrupt’ shall include the case of a person … with respect to whom a decree of cessio bonorum has been pronounced by a competent

Page: 451↓

court in Scotland. (2) A person adjudged bankrupt shall be disqualified from being elected to or holding or exercising the office of provost, bailie, treasurer, dean of guild, deacon, convener of trades, or councillor… (3) The disqualification to which a person adjudged bankrupt is subject under the said section, as amended by this Act, shall be removed and cease if and when ( a) the … decree of cessio bonorum with respect to him is recalled or reduced, or ( b) he obtains his discharge from a competent Court. Section 6 provides—“Sections 33 and 34 of the Bankruptcy Act 1883 shall apply to Scotland, subject to the following provisions—(1) In each of the said sections the expression ‘adjudged bankrupt’ shall have the meaning assigned to it in the immediately preceding section of this Act. … (3) The Said Section 34 shall be deemed to apply to any person whilst holding the office of provost, bailie, treasurer, dean of guild, deacon, convener of trades, or councillor” …

This was a process of suspension and interdict at the instance of James Wallace Thom, residing in Aberdeen, against the Lord Provost, Magistrates, and Town Council of the burgh as representing the community of the burgh.

In October 1882 decree of cessio bonorum had been pronounced against the suspender in the Sheriff Court at Aberdeen, and a trustee appointed by the Sheriff. This decree had not at the date of the present process been reduced or recalled, nor had the suspender obtained his discharge.

In November 1884 the suspender was elected by the electors of Greyfriars Ward in the burgh of Aberdeen to represent them as a member of the Town Council for three years, and he thereafter acted as town councillor.

At a meeting of the Town Council on 5th January 1885 a resolution was, on a representation made by the town clerk, passed in the following terms:—“That having considered the representation of the town clerk, and the documents therewith submitted, the Town Council resolve that the office of Mr James Wallace Thom, as a councillor for Greyfriars Ward of this burgh, be, and is hereby declared to be, vacant, in respect that he has become disqualified in consequence of his being a person who is an adjudged bankrupt.” The Town Council convened a meeting on 19th January to elect a councillor in the suspender's room.

The present note of suspension and interdict against the Provost, Magistrates, and Town Council was then presented. The suspender craved the Court to suspend the proceedings complained of, and to interdict the respondents “from electing or proceeding to elect any person a member of the Town Council of the said burgh to represent the Greyfriars' Ward of the said burgh as in room and place of the complainer, or from taking any proceedings or doing any act or deed whereby the rights and position of the complainer as the member of the Town Council still representing the said ward may be impaired or prejudiced, or the full and free exercise of his said office may be interfered with or prevented.”

He averred that the resolution of the Town Council was unwarrantable and illegal. “(Stat. 7) Assuming that the complainer was, in the words of Scottish or English Act, ‘a person adjudged bankrupt’ at the date of his election in November 1884, he was not thereby disqualified from being elected, in respect that the Scottish statute only took effect afterwards on the 31st December 1884, and is not retrospective. (Stat. 8) By the combined provisions of the English and Scottish statutes the disqualification of bankruptcy must arise during the tenure of office of the bankrupt, and that was not the fact in the complainer's case. (Stat. 10) The respondents, neither at common law nor under the statutes, had power to declare that the complainer's office as councillor was vacant in respect of the alleged disqualification.”

He pleaded—“(1) The resolution declaring the complainer's office of councillor vacant was ultra vires and null in respect that—1st, The Scottish statute founded on was not retrospective, and did not apply to or cover the complainer's case. 2d, The combined provisions of the Scottish and English statutes only apply to disqualification arising during the tenure of office. 3d, The respondents had no power either under statute or at common law to declare the complainer's office vacant. 4th, The complainer was not and is not an adjudged bankrupt in the sense of the statutes. (2) On these grounds, and in respect that he is still legally a member of the Town Council, the complainer is entitled to suspension and interdict as craved, with expenses.”

The respondents maintained that assuming the complainer to have been validly elected, he was, on a sound construction of the statutes above quoted, disqualified from continuing to hold office, and no longer held it. They also pleaded—“(3) Separalim, The election of the complainer to the office of councillor of the burgh of Aberdeen was invalid and null ab initio, in respect that at the date of the election he was a debtor who had been ‘adjudged bankrupt;’ and that section 32 of the English Bankruptcy Act 1883 (46 and 47 Vict. cap. 52) was then in force and applicable to Scotland as provided in sub-section 3 of said section 32” [quoted supra].

The Lord Ordinary refused the note.

“ Opinion. —I cannot say I have any doubt about this case, although I am glad to have had the advantage of a fuller argument on the question than was possible when it was mentioned the other day in the Bill Chamber. It appears to me to depend on the true construction of the 32d section of the Bankruptcy Act of 1883, because the provisions of the section of the subsequent Scottish Act of 1884 appear to me, so far as they apply to the 32d section of the Act of 1883, to be purely interpretative or explanatory, and I think the material parts of the interpretation are those which construe technical terms of English law, and words descriptive of English offices, for the purpose of making the enactment more clearly or readily applicable to the analogous offices and analogous conditions in Scotland. I do not think there is any difference of meaning between the introductory words of the 32d section of the Act of 1883, ‘where a debtor is adjudged bankrupt, and those of sub-section 2 of section 5 of the Scottish Act, ‘a person adjudged bankrupt;’ or that there is any difference between either of those phrases and the other phrase which has been mentioned, ‘where a person shall have been an adjudged bankrupt.’ All three appear to me to describe exactly the same condition of things, and it is a condition which must be established when the question arises as to the effect of the statutory

Page: 452↓

disqualification. The 32d section provides that where a debtor is adjudged bankrupt he shall be disqualified from being elected, or holding or exercising certain offices, one of which is the office of town councillor. I agree with what has been said by counsel on both sides of the bar, that this is not a retrospective enactment at all. I think it is in form, and in the contemplation of the Legislature, a new disqualification, which is to attach only from the time when the Act of Parliament came into operation. But then assuming it to be a new disqualification attaching only from that time, the question is to what offices or cases does this disqualification apply? Now the disqualification is, in the first place, from being elected—that is, from being elected after the passing of this Act to the office, amongst others, of town councillor; and secondly, from holding or exercising the office of councillor. When the appellant was elected to the office of town councillor after the passing of the Act of 1883, he had been adjudged bankrupt in the sense of the statutes, and was still an undischarged bankrupt in the sense of the statutes; and therefore there can be no doubt whatever that the disqualification applied, provided the 32d section of the Act of 1883 could be construed, without the aid of the Act of 1884, so as to cover the case of a town councillor in Scotland with respect to whom a decree of cessio bonorum had been pronounced by a competent court. I am disposed to think that if the Act of 1884 had not been passed I should have held such a person to be adjudged bankrupt in the sense of the Act of 1883; and I should certainly have held the office of town councillor to be one of those to which the disqualification of section 32 applies. But if there were any difficulty in so reading the Act of 1883, it is entirely removed by the Act of 1884. I agree that this statute also is not retrospective. But the enactments which the 5th section interprets were already applicable to Scotland; and I do not think they can be construed in one way before December 1884, and in a different way after that date. But if they could, it would be immaterial, because if the appellant were not disqualified under the Act of 1883 from being elected, he became disqualified when the Act of 1884 came into operation from continuing to hold his office. For the statute appears to me to contemplate two alternative conditions—that of being elected while the disqualification attaches, or going on to hold or exercise an office after it has attached, although the election may have been perfectly valid and free from any disqualification at all. It follows, of course, from what I have said, that in my opinion the office which the appellant claims to hold is now vacant; indeed, it has never been duly filled, because this gentleman was at the time of the election disqualified, and therefore it is quite impossible to interdict the Town Council from proceeding to act upon that footing.”

The complainer reclaimed, and argued—(1) On a proper construction of the Acts of 1883 and 1884 the disqualification must arise during the tenure of office. A councillor duly elected could not be deprived of office by reason of an alleged disqualification which came in to existence before he was elected. On any other reading of the Acts sec. 34 of the Act of 1883 would be superfluous and unmeaning, for sec. 32 by itself was enough for an absolute statement of the disqualification imposed by the Act. No disqualification under the Scottish Act of 1884 attached to the complainer when he was elected, for that would be to give it a retrospective effect which was incompetent—Maxwell on the Construction of Statutes, pp. 257, 266; Queen v. Vine, January 27, 1875, L.R., 10 Q.B. 195. (2) The action of the Magistrates was illegal, because they could only proceed in the removal of a colleague by regular judicial process, as provided in the Municipal Acts 3 and 4 Will. IV. c. 76, sec. 25, and 16 Vict. c. 26, sec. 5.

Counsel for the respondents were not called upon.

At advising—