Application of the acts of parliament containing the nomination of commissioners of supply.
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A vacancy having occured in the office of collector of the land-tax for the county of Perth, a meeting of the commissioners of Supply took place upon the 30th April 1800, for the purpose of supplying it. At this meeting, the Sheriff of the County took the chair, and appointed the clerk, for the purpose of electing a preses, to call over the names of the Commissioners of Supply, as they stood in the acts 37th Geo. III. C. 35. and 38th Geo. III. C. 26. to which nomination, the act for the redemption of the land-tax had a reference. But he refused to receive the votes of those persons present, whose right to vote rested merely on the 39th and 40th of Geo. III. C. 31. containing a nomination of additional Commissioners for enforcing certain duties upon pensions and offices in England, but which, in his Opinion, did not appear to relate at all to the Commissioners of Supply for the county of Perth.
Upon which it was represented to the Sheriff, “That by the act 39th and 40th of his Majesty, C. 31. the gentlemen were entitled to vote, and to act as Commissioners of Supply of the county of Perth; and that their nomination could only be considered as a rider upon the act.” To which it was answered, “That the only acts of Parliament naming Commissioners for laying on the land-tax in the casualty of perth, were those Produced by the Sheriff:
“That the law they pretend to act under, is an act of the present session, appointing Commissioners for executing an act of parliament, which is nowise connected with the business of that day; and therefore these gentleman cannot be received as members of that meeting.”
The Sheriff persisted in refusing to receive these votes, which however, were given under protest, both for the preses of the meeting, and for the collector of the county.
It appeared, upon calling the votes for the office of collector, that a majority of those who stood upon the roll of Commissioners, in virtue of the acts 37th, 38th of the King, was in favour of Mr. Kinloch of Gourdie. If, however, the votes of those gentlemen who claimed to be ranked among the commissioners of supply, under the act 39th and 40th of the king, were taken into account, the majority of the meeting appeared to be in favour of Mr. James Stewart, writer to the Signet.
Kinloch was declared to be duly elected, but it was at the same time protested by those, whose right to act as Commissioners had been rejected, that Stewart was duty elected by a majority of votes.
Thereafter Stewart raised an action against Kinloch, to have it found that he had no right to the office of collector of the case and land-tax for the county of Perth, and that he should be obliged to denude himself of the said office, in favour of the purser.
The Lord ordinary reported the cause, and the court, 10th March 1801, assoilzied the defender. Stewart presented a retaining petition, in which he
Pleaded: The invention of the act 30th and 40th Geo. III C.31. evidently appears to support the nomination of those gentlemen as Commissioners of Supply, whose votes were refused by the Sheriff. The objection to them is not a defect, but merely an omission. And, at all events, the subsequent act of parliament 39th and 40th Geo. III. G. 68. must entirely remove every objection. It is entitled, “An act for extending the powers of the commissioners, named in an act made in the present session of parliament, entitled, “An act for appointing Commissioners to put in execution an act of this session of Parliament, entitled, an act for continuing and granting a duty on pensions, &c. certain duties on sugar, malt, &c. together with those named in two former acts for appointing Commissioners of the land-tax.” It then goes on, “For indemnifying such persons named in the said act, as have acted as commissioners of the land-tax, and for rendering valid certain acts done by them.” The preamble states, “Whereas it is necessary that the additional Commissioners named in an act of this session of Parliament, viz. 39th and 40th Geo. III. C. 31. should also be authorised and empowered to put in execution, an act of the 38th year of his present Majesty, entitled, An act for granting an aid to his Majesty, by a land-tax; and also an act of the same year, entitled, an act for making perpetual, subject to redemption and purchase, the several sums of money now charged in Great Britain as a land-tax, &c.” Then follow the enacting clauses, rendering valid and effectual the whole actings of the persons named Commissioners, under the defective act, and restoring matters precisely to the same situation as if the mistake had not occurred in the former act, in these words, “And that all acts whatsoever, done by any of the foresaid persons, as commissioners of the land-tax since the passing of the said act of this session of Parliament, shall be, and are herey declared to be, valid and effectual in all respects and to all intents and purposes whatsoever as if such acts had been done after the passsing and by virtue of the authority of the present act.” This statute is to all intents and purposes a public act of Parliament applying, not to the county of Perth, but to all the other counties of Scotland, and as such must have effect in a court of law; Blackstone, I. 91.; the power and efficacy of retrospective statutes having been recognised on many occasions; 28th Geo. II. C. 24. Banks against Jaffrey, June 6, 1792, No. 52. p. 9384.
Answered: The persons whose votes were refused by the Sheriff, never acted as Commissioners of Supply. They merely offered to act. The suppletory statute, therefore, which was intended to indemnify those persons who had bona fide acted as Commissioners under the defective act, does not apply. If this suppletory act be held to be a public act of Parliament, it could not be the intention of the Legislature that it should operate retro, so as to affect the private rights of any individual already acquired, without giving compensation; and, if it be held as a private act, it cannot affect the rights of a person who was not a party to it, as such acts are always passed salvo jure cujuslibit. The general words in this suppletory statute cannot be so interpreted; Bacon's Abridgment, p. 636. and 640.
The Court adhered.
Lord Ordinary, Justice-Clerk.Act. Hamilton, Campbell junior.Agent, Ja. Hamilton, W. S.Alt. Lord Advocate Hope, Craigie.Agent, Ja. Keay, W. S.Clerk, Home.
Fac. Coll. No. 16 p. 32.
