Scottish Court of Session Decisions

The General Police and Improvement (Scotland) Act 1862 having been adopted in the burgh of Wishaw, four Commissioners fell to be elected under the statute in September 1869. Seven candidates were proposed—Rankin, Gilchrist, Liddell, Moffat, Miller, Watt, Hudspith. A poll was taken on September 6—the result, as declared by the Sheriff, being that the candidates stood in the order just mentioned. The first four were declared to be duly elected. Before the poll began a protest was lodged for Miller against the poll being proceeded with, on the ground of Liddell being disqualified in consequence of failure to pay his rates, and also of certain irregularities in the demand for a poll. The Sheriff received and marked the protest, but gave no decision on the points raised by it. At a meeting of the Commissioners on September 13, Messrs Rankin, Gilchrist, Liddell and Moffat took their seats. Thereupon a written complaint was lodged for Watt in the following terms:—“I, James Watt, baker, Cambusnethan, hereby complain to the Commissioners of the burgh of Wishaw, assembled at their first general meeting, held on the 13th day of September 1869, after the annual election of Commissioners for said burgh, which took place on the 4th and 6th days of said month of September, that I ought to have been returned as a Commissioner at said election, and that I dispute the return of Commissioners made thereat; and I hereby request that inquiry be made into the same in terms of ‘The General Police and Improvement (Scotland) Act 1862.’” Three Commissioners were nominated as a “scrutiny committee to inquire into the complaint.” On September 20 the committee reported the conclusions to which their investigations had led them —“(1) That at the time of the meeting for electing Commissioners, John Liddell was not qualified to be nominated or elected; (2) that

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the demand for the poll on behalf of John Liddell and John Moffat was signed by two persons who were disqualified, not having paid the assessments then due; and (3) that thirteen persons voted who were disqualified, their names not appearing on the valuation roll. Of these, ten persons voted for Mr Rankin, nine for Mr Liddell, and nine for Mr Moffat—those votes being deducted from those appearing on the poll-book on behalf of John Moffat, reduce them to 171, being three less than those voting for Mr James Miller.”

They therefore reported that John Moffat and John Liddell had not been elected, and that James Miller and James Watt had been duly elected.

The report was adopted by a majority of the Commissioners, and Miller and Watt declared to be elected in place of Liddell and Moffat.

Moffat and Liddell raised the present action, calling as defenders Miller and Watt and the clerk to the Commissioners, as representing their interest. The conclusions of the summons were for reduction of the minutes of the Commissioners and of their committee which related to the election of Miller and Watt, and to have it declared that the pursuers had been duly elected Commissioners of Police for the burgh of Wishaw, and that Miller and Watt had no title to the office. They pleaded, inter alia, that as Miller had failed to lodge a complaint under the statute at the first meeting of the Commissioners after the election, it was ultra vires of the Commissioners or their committee to declare him elected; and that Watt had no title to act as Commissioner, as in any view he had a less number of votes than Miller, who alone had the interest to make the complaint.

The Lord Ordinary ( Mure) pronounced the following interlocutor:—“Finds that at the meeting of Commissioners of Police for the burgh of Wishaw, held on the 13th of September 1869, no application in writing was made to the Commissioners under sect. 48 of the statute 25th and 26th Vict. cap. 101, on behalf of the defender James Miller, complaining of the election of Commissioners for the burgh: Finds in these circumstances that it was ultra vires of the Commissioners, or of any committee appointed by them, to inquire, under the complaint given in to the meeting at the instance of the defender James Watt, into the merits of the said election, to the extent and effect of declaring the said James Miller a Commissioner for the burgh; and that the report of the committee appointed at the meeting to consider the complaint of the said James Watt, and the resolution of the Commissioners of the 20th September 1869, adopting that report, and declaring the said James Miller to be an elected Commissioner for the burgh, was to that extent ultra vires and illegal, and that their report to that effect is not protected by the finality clauses of the statute: Therefore and to that extent reduces, decerns, and declares in terms of the reductive conclusions of the summons: Finds that the said James Miller has no right and title, in respect of the said report and relative resolution, to the office of Commissioner of Police for the burgh; and interdicts, prohibits, and discharges him from acting as a Commissioner: Quoad ultra, assoilzies the defenders from the conclusions of the action, and decerns: Finds no expenses due to either party.”

Moffat and Liddell reclaimed.

Shand and Guthrie Smith, for them, argued that Watt as well as Miller should have been displaced.

Watson and R. V. Campbell, for Miller and Watt, contended that the Lord Ordinary was right in refusing to displace Watt. Mr Campbell further argued that Miller should not have been displaced; that it was a competent proceeding for the Committee to inquire into his election, as a complaint by any one of the defeated candidates must necessarily involve an investigation of the whole poll. This point was, however, given up when the senior counsel for the reclaimers was about to reply, and the respondents intimated that they acquiesced in the interlocutor of the Lord Ordinary.

At advising—