Scottish Court of Session Decisions

By the Act 3 and 4 Will. IV., c. 76, it is provided (sect. 15), that on the first Tuesday of November in each year, the electors in certain burghs, including Glasgow, shall elect one-third part of the council of such burghs “in the place of the third thereof, who shall, as hereinafter directed, go annually out of office.” The next section enacts, that “upon the said first Tuesday of November” in each year, one-third of the council “shall go out of office,” &c., and “the third of the councillors so annually going out of office shall always consist of the councillors who have been longest in office, provided always, that any councillors so going out of office shall be capable of being immediately re-elected.” With reference to the election of magistrates following the first election of councillors under the statute, it is provided by sect. 17, that the councillors elected and accepting “shall, upon the third lawful day after the election of the whole number of such councillors in the present year, assemble in the town-hall, or other usual public place of meeting within such burgh, and shall there, by a plurality of voices (the councillor who had the greatest number of votes at the election of councillors, having a casting or double vote in case of equality), elect from among their own number a provost or chief magistrate, the number of bailies fixed by the set or usage of such burgh, a treasurer, and other usual and ordinary office-bearers now existing in the council by the set or usage of each such burgh.” It is enacted by section 22, that “the registered electors qualified as herein before provided, in the said cities and burghs of Edinburgh, Glasgow, &c., shall, in November in the present year, and in all future years, elect only such a number of councillors as, with the addition of the said deans of guild and conveners to be selected as aforesaid, make up the number of councillors now existing in the said several cities and burghs.” The 24th section provides, “that when any magistrate or office-bearer (other than the provost or chief magistrate and treasurer) shall be in the third of the council going out of office, the place of such magistrate or office-bearer shall be supplied by election by the council as soon as the full number thereof shall have been completed by the annual election of the third then hereby directed to take place; the said election to be made by plurality of voices, and the chief or senior attending magistrate to have a double or casting vote in case of equality: Provided always, that the provost or chief magistrate and the treasurer shall always remain in office for the period of three years, and that they, as well as all the other magistrates or office-bearers, shall at all times be capable of being re-elected.” By the 25th section it is enacted, that “if any vacancy shall in the course of the year occur in the council or magistracy or office-bearers of any such burgh by death, disability, or resignation, the same shall be filled up, ad interim, by the remaining members of the council, by election, as herein before provided.” This interim election is only to last till the end of the current year in which it is made.

Prior to the municipal elections in 1837, the office of Lord Provost of Glasgow was held by Mr William Mills, who had been elected a councillor in 1833, and in consequence of the resignation of Provost Graham, had been chosen by the council to be provost on 7th November, 1834. On the first Tuesday (7th) of November, 1837, Mills was one of the third of the council then going out of office by rotation, the statutory period of his office of provost having expired at the same time. He was on that day of new elected a councillor by a different ward from that which he had previously represented. At this juncture the eldest bailie was Mr Henry Paul, who had been elected one of the five bailies in November, 1836, and was not now one of the members of council going out of office. Since the passing of the Burgh Reform Act, it has been the practice in Glasgow for a councillor who has been elected a bailie to be continued annually, without re-election, in the office of bailie, as long as he remained in the council.

On the 8th November, a meeting of council took place relative to the declaration of the election of now councillors, at which Mills and Paul were present. A protest was served upon the former by certain of the council, representing that Paul was the senior magistrate of Glasgow, and as such and in consequence of there being no provost, was by law and usage the proper magistrate entitled to attend at the opening of the poll-books, &c., and intimating that Mills was not provost, and not entitled to act as such in any matter whatever. Thereupon Mr Reddie, the town-clerk, having been consulted as to who should preside on the occasion, recommended that Mr Mills and Mr Paul should both be present at the casting up of the votes, and the declaration of the councillors elected. The seals of the poll-books were accordingly broken, and the votes cast up by Mills and Paul jointly; another protest being at the same time tendered by two of the councillors elect against the validity of any declaration by Mills, either by himself or conjunctly. The minutes were signed by both parties jointly. On the 9th November, in presence of Paul as chief or senior magistrate of Glasgow, the newly-elected councillors, including Mills, severally declared their acceptance of the office of councillor, and took the oaths. The minutes of this meeting were signed by Paul alone.

On the 10th, which was the day appointed by the statute for the election of magistrates, Mills and Paul mutually asserting their right to preside, the town-clerk's written opinion, to the effect that Bailie Paul, as senior magistrate, was entitled to preside, was read to the meeting and engrossed in the minutes. ^* Notwithstanding of this, Mills still insisted on his right to occupy the chair, and both “continued in the chairs originally occupied by them.” Thereafter the council proceeded to the election of the provost, when fifteen members of council, including Bailie Paul, voted for the suspender, Dunlop, and fifteen, including Mr Mills, voted for the respondent, Fleming; the candidates both declining to vote, and Mills giving his casting vote for Fleming, while Paul gave his casting vote for

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^* This opinion was as follows:—“I am of opinion, that although the 24th section of the Burgh Reform Act may authorize the individual elected provost to remain a third year in office, without any new election as councillor, and after he must otherwise have retired from the council, this clause does not authorize such individual to preside at and vote in the election of his successor at the meeting of council directed to be held for that purpose; for such a construction of this clause would increase, by one, the number of electors of the provost and magistrates, namely, the number of the members of council entitled to vote at this meeting, from thirty-two to thirty-three, and would thus be inconsistent with, and contrary to the fundamental law of the constitution of the burgh, which limits the number of councillors to thirty-two.

“By section 17th, the election of the provost and magistrates is vested solely in the members of council; and by section 24th provision is made for the retirement of the provost, who has been three years in office, and ceased to be a member of council by the direction that the election is to be made by a plurality of voices, and the chief or senior attending magistrate to have a double or casting vote in case of equality.

“A certain curriculum in office is fixed by the enactment, that a third of the council shall retire every year; and the clause providing that the provost and treasurer shall always continue three years in office must have reference, for the due extrication of the other provisions of the act, to this statutory curriculum, which, according to the opinion I have already given, I conceive terminates, at latest, with the act of declaration of the election of the new councillors.

“Nor does the circumstance of the individual who has been provost for three years, being again elected a member of council, make any difference. For such a re-election is merely an accidental event, which may or may not happen, and cannot, consistently with sound legal principle, be held to affect the general and permanent construction of the statute.

“Upon these grounds I am of opinion that Bailie Paul, as senior magistrate, is legally entitled to preside at the meeting on Friday first, for the election of provost and magistrates.”

Dunlop. Fleming and Dunlop were declared by their friends respectively to be duly elected, and the oaths were administered to each. The council then elected four bailies in room of persons who had resigned or retired, no re-election being made of Paul, who continued to hold the office of first bailie in virtue of his original election in 1836. Immediately after Fleming had taken the oaths, Mills, who had retained possession of the gold chain and seal of office, which have always been worn by the provosts of Glasgow, placed the chain round Fleming's neck. This ceremony was not entered or referred to in the minutes, which were signed jointly by Dunlop and Fleming.

On the 1lth November, a meeting of magistrates was held for the purpose of arranging committees, at which Fleming attended and presided. Dunlop was also summoned to this meeting, but was prevented from attending, his friends among the magistrates insisting on it being understood that their taking part in the business was no recognition of Fleming's right.

On the 16th, a meeting of the magistrates and council was held for appointing committees, at which Fleming again occupied the chair, but in the face of a protest by Dunlop. The minutes began as follows:—“Convened John Fleming, Esq., and Henry Dunlop, Esq., Lord Provost, or either of them, Henry Paul, &c.” Thereafter various official business was transacted by, and communications addressed to Fleming and Dunlop, as Lord Provost respectively, neither acquiescing in the pretensions of the other; and the circumstance of one or other being recognised as provost depending apparently on the respective opinions of the parties with whom the business was transacted, and by whom the communications were sent.

On the 17th November, Dunlop presented a bill of suspension and interdict against Fleming, complaining of his attempt “to usurp the office and privileges of lord provost of the said city of Glasgow, and to molest the complainer in the exercise thereof,” and concluding that “the said attempted or threatened molestation of the complainer in his office of lord provost aforesaid, on the part of the said John Fleming, and the said attempted or threatened usurpation of the said office of lord provost by the said John Fleming, ought and should be simpliciter suspended, and the said John Fleming ought and should be prohibited, interdicted, and discharged from molesting the complainer in the dignity and functions of the said office, and from usurping or claiming, and pretending to the same on his own behalf.” The complainer therefore craved letters of suspension and interdict in the premises, and interim interdict until the final disposal of the case. The Lord Ordinary, on the same day on which the bill was presented, sisted execution and appointed intimation, reserving consideration of the interdict.

Answers to the bill were put in by Fleming, in which he contended, 1st, That the form of procedure by suspension and interdict in such a question as the present was incompetent; 2d. That in the circumstances of the present case, looking to the induction of Fleming to the office of provost, and particularly to his investiture with the official chain and seal, and also to the possession had by him, the application was incompetent; and, 3d, That, at all events, the magistrates and council ought to have been made parties to the suspension. He further maintained, on the merits, that Mills, as the last lord provost, was entitled to act until his successor was nominated, and therefore to preside and give his casting vote at the meeting in question, in preference to Paul, who had no such right; this continuance in office being independent of the Burgh Reform Act, and based on the principle of perpetual succession applicable to corporations, and recognised under the old municipal system.

The Lord Ordinary having reported the cause to the Court, it was maintained in support of the bill; ^*—

1. Assuming that the Court has a right to interfere by suspension in the matter of municipal elections, ¹ there is nothing in the circumstances of the present case to exclude its jurisdiction. There has been no such possession by Fleming as to bar procedure by suspension. The alleged investiture by means of the gold chain and seal of office, and the occupation of the chair on the 10th November, cannot be entitled to any weight as establishing a right; and no mention is made of these ceremonies in the minutes of the meeting. Fleming no doubt attempted to exercise the functions of Lord Provost, which affords the ground of the present complaint; but the res gestæ show that any possession he had was not exclusive but divided. Suspension and interdict being held to be a competent proceeding, it was not necessary or proper to call any other parties than the single party molesting the complainer in the exercise of his right. If the town-council required to have been called, their direct constituents, the municipal electors, ought also to have been called; but the present complaint does not bring in question the validity of the act of the council or desire to have them interdicted, the complainer assuming the office of Provost to have been conferred by the council upon himself, and desiring an interdict against that party who prevents him from enjoying it.

2. The present question on its merits arises under and must be regulated by the Municipal Reform Act, and the new law of election, which system is based upon three principles, viz. that a popular constituency shall choose the councillors; that the councillors shall elect

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^* When the cause first came on for advising, the Court referred in terms of censure to certain certificates by private persons, in regard to the matter in question, printed in the appendix to the bill and answers respectively, as documents which were not evidence, and which ought to be withdrawn from the process. The parties accordingly agreed not to found upon these certificates in their argument, and to hold them as withdrawn.

¹ Monteith v. M'Gavin, ante, p. 122.

the magistrates; and that there shall be a rotation of councillors. Keeping these principles in view, and looking to the terms sections 15, 16, 17, 22, 24, and 25 of the act, it seems to be clear that Mills had ceased to be provost antecedent to the meeting for the election of magistrates, and had no casting vote; and on the other hand that Bailie Paul, as senior magistrate, was alone entitled to such vote. No one was entitled to be present at that meeting, except an existing councillor of the burgh, the council consisting of thirty-two in number. Mills having been re-elected a councillor was an accident which might or might not have happened, and the case must be taken as if he had not been re-elected. If so, it can hardly be maintained that he was entitled to appear or take any part in the proceedings. He was offici ally defunct, and had not only gone out of office, but another had come into office in his stead. The council was full, and being a complete body in itself, nothing but the most express and clear enactments could subject its proceedings to the interference of an individual who was no longer a constituent member of it, who could not take a part in its deliberations, and on whom it would therefore be a mockery to confer a right of controlling one of its most important corporate acts. The circumstance that a man had been a councillor or a magistrate could give him no right of attendance or interference, and by no authority in practice or under the statute, could the council be composed for any period, however short, of a number of members greater than its complement. It is clear he could have no deliberative vote, which of itself excludes the idea of his having a double or casting vote. Under the terms of the statute the casting voice is to be in the person who attends the meeting in the character of chief or senior magistrate. But Mills was there in no such character..As without re-election as a councillor he could not have taken part in the proceedings at all in respect of any former dignity belonging to him, so he could not, from his re-election, claim any privilege except such as belonged to a simple councillor. His old status as councillor of one ward having ceased before the 10th November, the dignity of magistracy engrafted upon it was in like manner extinguished, and could not possibly revive with his new status as councillor of another ward. The right to the casting vote on the day in question clearly belonged to Paul as the senior magistrate in office entitled to exercise every privilege and function belonging to that character. He was eldest bailie in virtue of his original election, and did not require to be, as he was not in fact, re-elected to the office of bailie, with which he was manifestly still invested.

The respondent on the other hand contended;—

1. The present suspension is incompetent, as, previous to the bill being presented, the party sought to be interdicted was sufficiently installed in his office, and was in the discharge of his duties. In a question of possession, the fact of having been invested with and subsequently wearing the insignia of office, is important; and the circumstance of the complainer thinking it necessary to resort to suspension is a proof that he wishes to disturb the existing state of possession. But the suspension is clearly incompetent on the other ground of the town-council, and particularly Mills, not having been brought into the field. The council have a direct interest in the question at issue, which regards the right to an office within the council, and touches the validity of a corporate act affecting the constitution of that body. Supposing the suspension were discussed, the corporation might bring a declarator as to the correctness of their proceedings, which shows that they are parties interested, and who ought to have been called. In a reduction there is no doubt they must have been called. The old election statutes (7 Geo. II. c. 16, and 16 Geo. II. c. 11) contain provisions for bringing all the proper parties in cases of disputed elections into the field. Even prior, and, still more, subsequent to these statutes, the cases show that the town-council required to be called in all such questions; and if so, there is nothing in the Municipal Reform Act to make this the less necessary. ¹

2. The existence of a corporation depends on the principle of the continual succession of its office-bearers, and this principle must likewise govern the election of the office-bearers of town-councils. The continued existence of the magistrates is indispensible for preserving the public peace, and for the administration of the affairs of the community; otherwise the whole judicial and administrative powers of a corporation would be liable to be occasionally in abeyance, which is a state of things not to be supposed. This principle was sanctioned by the ancient usage of the Scottish burghs, and where the Municipal Reform Act has not expressly provided to the contrary, such ancient usage is not to be overlooked. But in the present case, the principle is indirectly recognised in various sections of the act. ²

Mills, therefore, having been the last provost of Glasgow, was not functus officio till the completion of the election of the new provost, and consequently was entitled to give his casting vote for the respondent on the day of the election of magistrates. If Mills did not possess a casting vote, still less did Paul possess one. He could have none under the 24th section of the statute, applying as it does, not to the election of a provost, but to the election of magistrates or office-bearers other than the provost. There is no provision regulating the elections of bailies, or prescribing the time during which they shall remain in office. In the absence of any such provision, and following the spirit of the act, the bailies ought to be

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¹ Gillies v. Waugh, Feb. 18, 1755, M. 1875; Gray v. Spence, Feb. 24, 1804, M. v. Burgh Royal App. 15; Campbell v. Henderson, June 24, 1814, (F. C.); Gray v. Magistrates of Anstruther, June 29, 1819 (F. C.); Orr v. Vallance, Dec. 2, 1831, ante, X. 93.

² § 10, 18, 31, 36.

subject to annual re-election. Paul's office as bailie would thus terminate and his powers be extinguished, unless he was re-elected on the 10th November; and as the election of provost precedes that of the bailies, he could have no casting vote in the election of the provost. The mere fact that there was not in Glasgow an annual election of the bailies would not affect the argument, for the elective powers must be governed not by what a particular council did or did not do, but by what in law they were bound to do.