James Donaldson, and Others, v. The Magistrates of Kinghorn
Date: 29 July 1789 Case No. No 32.
Where no deacon has been elected at the usual time, the next election must be authorised by the magistrates.
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The corporation of takers in the town of Kinghorn had not elected a deacon for eight years preceding September 1788. At this time James Donaldson was chosen into the office; but on his appearing to take his seat in the Council, it was objected, That his election having proceeded without any previous authority from the magistrates, was unwarranted and void.
The magistrates having sustained this objection, James Donaldson and his adherents complained to the Court of Session, in terms of the statutes 16 Geo. II. and 14 Geo. III.; and
Pleaded: Where no magistrates have been chosen on the day fixed for that purpose, it is understood that an application must be made to the King for authorising a poll-election; and hence it may be thought, that where a corporation has omitted to chuse a deacon, a similar application ought to be made to the magistrates, from whom the different corporations have received their privileges. But the distinction between the two cases is sufficiently obvious. The authority of the magistrates, who in general have a power of chusing their successors, is only for a year, and after the elapsing of that period, without a new nomination, there is no one who can proceed to an election. But in the case of the subordinate communities within burgh, where the right of election is in the members of the corporation, as this must subsist as long as there is a member capable of enjoying the privileges belonging to it, so where, for one year, no deacon has been chosen, there is nothing to hinder the members of the corporation, after due premonition, to meet and chuse their office-bearers, in the same way as where a deacon regularly chosen happens to die during his office. In such a case, it is usual for the members of the corporation, without any warrant from the magistrates, to meet for the purpose of chusing his successor; l. 7. § ult. D. Quod cujuscunque universitatis nomine; Bankt. lib. 1. tit. 2. § 27.
Answered: The only difference in this matter between the election of magistrates and that of a deacon, is, that the magistrates deriving their authority from the Crown, it is necessary, where no election has been made on the day fixed by the charter of the burgh, to apply to the Sovereign for a warrant to proceed to a new election; whereas the lesser communities within the burgh having been originally created by the magistrates, it is to them that an application is to be made, when, in consequence of a failure to elect at the time appointed for that purpose, the corporation is without its ordinary representative and manager. In both cases, where the regulations laid down in the original formation of the society, as to chusing the office-bearers in it, have not been observed, it is indispensably necessary to obtain a special warrant for that purpose; because, it is in virtue of those regulations alone, that any one member of the community can pretend to any pre-eminence over his fellow-citizens. To admit a contrary practice would occasion much inconvenience and disorder.
Reference was also made by the respondents to a decision of the Court in 1770 or 1771 (not collected), where the question appeared to have been determined agreeably to the argument maintained by them.
‘The Lords dismissed the complaint, and found expences due.’
Act. Wight Hay, et alii.Alt. Tait, et alii.
Fac. Col. No. 83. p. 150.
