Scottish Court of Session Decisions

Thompson brought this action for the purpose of having it judicially declared that he had been duly elected inspector of poor-rates for the parish of Inveresk, and also for the purpose of reducing certain minutes of the parochial board of the same parish which bore that the defender John G. Muir had been duly elected to that office.

The Lord Ordinary ( Mackenzie) assoilzied the defender, and found that John George Muir had been duly elected.

He remarked in his note:—“According to the report of the scrutiny committee, appointed at the adjourned meeting of the Parochial Board of Inveres, held on 5th September 1870, for the election of an inspector of poor and collector of poor-rates, the defender Mr Muir had 64 votes, and the pursuer Mr Thompson 49. Of these 64 votes in favour of Mr Muir, the pursuer maintains that 14 votes given by Dr Sanderson on mandates, the first four votes stated in the second head of the list No. 13 of process, and the vote of Mr Spence, mentioned in article 13 of pursuer's condescendence, being in all 19 votes, are illegal and invalid, and fall to be disallowed.

The Lord Ordinary is of opinion that the pursuer has failed to establish that there is any good objection to the votes given by Dr Sanderson on the mandates granted in his favour, in so far as sustained by the serutiny committee. These mandates were obtained from the granters by Mr Bolton, an intended candidate; they bear to be in favour of Dr Sanderson, whom failing Mr Millar, whom failing Mr Chalmers. These mandates were delivered by Mr Bolton to Mr Chalmers, one of the mandatories. Mr Chalmers took these mandates to the meeting for the election of an inspector and collector held on 5th September 1870, and as he was obliged to leave the meeting, he delivered them to a person of the name of Doleman, with instructions to hand them to the clerk of the meeting, and to get them recorded at the voting in favour of Mr Fernie, one of the candidates. Mr Doleman, after Mr Chalmers left, handed these mandates to the clerk of the meeting when he called for mandates, with a request to that effect, but as he was not the mandatory, and as Dr Sanderson, the mandatory first named in the mandates, was present, this request was refused, and the votes on the mandates were recorded for the defender Muir as directed by Dr Sanderson.

The Lord Ordinary is of opinion that neither Mr Chalmers nor Mr Doleman were entitled to act or vote on these mandates; that their request on behalf of Mr Fernie was properly refused, and that Dr Sanderson was entitled to vote upon them.

The pursuer also objects to the act of the scrutiny committee in admitting 4 of these 14 mandates, viz., those of Mrs Boak, Thomas Moran, William Stewart, and John Slight, and maintains that they fell by reason of later mandates having been granted in favour of Mr George Smith, who voted on them in his favour. But these four mandates in favour of George Smith do not bear the date of granting, and they all refer to a meeting to be held on 2d August 1870, or any adjournment thereof, except that of John Slight, in which the date of the meeting for which it was granted is written on an erasure. The meeting called for 2d August was not held in consequence of a mistake made by the pursuer in calling the meeting, and there never was any adjournment thereof. Another meeting was called for 15th August 1870, but that also was abandoned owing to another mistake in calling the meeting. The meeting of 16th August, being the first meeting held for the election of an inspector and collector, was duly called, and was an entirely separate and independent meeting from that of 2d August 1870. The mandates in Dr Sanderson's favour are all dated, and confer authority to act and vote upon any matter relating to the appointment of an inspector and collector, not only at the meeting of 2d August 1870, but at any subsequent meeting. These four mandates were, it appears to the Lord Ordinary, rightly given effect to by the scrutiny committee.

The scrutiny committee admitted the votes of Catherine Young, A. J. Christie, Charles Pearson,

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and Agnes Legat (being the four names first mentioned in head 2 of the list No. 13 of process), in favour of the defender Mrs Muir. The pursuer objects that these persons had no qualification; that they were not on the assessment roll of the parish; and further, that in any view Charles Pearson and Agnes Legat were merely joint proprietors, and were therefore not entitled to vote. The qualification for membership of the Parochial Board of Inveresk, under section 22 of the Poor Law Act (8 and 9 Vict. c. 83), is being owner of lands and heritages in the parish of the yearly value of £20 and upwards.

The scrutiny committee sustained the votes of the four persons above mentioned as possessing the statutory qualifications, and the pursuer has failed to prove that they do not possess it. His objection that they are not on the assessment roll of the parish, and that they are therefore not entitled, under section 21 of the statute, to vote, is untenable. The assessment roll is not proof of ownership under the statute, and the 21st section of the statute, which relates to the mode of voting in burghal parishes and combinations, only provides that the assessment books of the collector shall be taken as evidence of the annual value, ‘for the purpose of ascertaining the number of votes to which each person is entitled.’

In like manner, the pursuer has failed to prove that Mr A. O. Spence did not possess the statutory qualification.

There were 97 votes given in favour of the pursuer. Of these 49 or thereby were struck off by the scrutiny committee for the following reasons:—There were erasures in 15 of the mandates of the date of meeting for which they bore to be granted. This, the Lord Ordinary thinks, was good objection. Ten were struck off for want of qualification. The pursuer has not proved that they had the requisite qualification. Nine were struck off on the ground that they fell under section 25 of the statute, as joint owners or companies, and were not qualified as therein provided. Twelve mandates were disallowed, on the ground that they were granted for a meeting to be held on 2d August 1870, or on any subsequent date to which said meeting might be adjourned, whereas, as already stated, there was no meeting held on that day, and consequently there was no adjournment thereof, so that the mandates fell. The vote of a curator bonis was properly disallowed. So also was the vote on a mandate on which the mandatory was not named, and the vote on a general mandate to attend and vote at all meetings of the Parochial Board, which was dated 6th May 1871.

Deducting these 49 votes from the 97 given for the pursuer, there remained 48. But of these 48 votes there were no less than 33 given on mandates which are ex facie of the mandates invalid in respect of the date of the meeting for which they bear to be granted being printed on an erasure. They were originally granted for 15th August, a day fixed for the election, but which had to be abandoned in consequence of some mistake in calling the meeting. The figure ‘5’ was erased and the figure ‘6’ was printed in its place. In consequence of having been skilfully done and printed, it escaped the notice of the scrutiny committee. These 33 votes on mandate fall, the Lord Ordinary conceives, as vitiated and erased in essentialibus, to be rejected in the present inquiry, seeing that the pursuer concludes to have it found and declared that he was duly elected inspector and collector. Of these 33 mandates 5 are also objectionable as not having been writings under the hands of the respective mandants, as provided by section 22 of the statute, but as having been subscribed in their names by third persons, with their authority.

According to the view taken by the Lord Ordinary, there were given at the adjourned meeting of 5th September 1870, in favour of the defender Mr Muir, 54 valid votes, and there were given in favour of the pursuer Mr Thompson, only 15 valid votes.

It is averred on record that the pursuer was declared duly elected at the adjourned meeting of 5th September 1870, and that the meeting was dissolved before a scrutiny of the votes was demanded, and the scrutiny committee appointed. But he entirely failed to prove this; and it is clearly established by the proof that at the close of the voting a scrutiny was demanded, and a committee was appointed for that purpose.

The Lord Ordinary has only further to remark, that, even on the assumption that Dr Sandereon had no right to vote on the above mentioned mandates, and that the pursuer had succeeded in showing that he consequently had a majority of legal votes over the defender Muir, the pursuer could not obtain decree of declarator that he was the duly elected inspector of poor and collector of poor rates of the parish of Inveresk; because, if Dr Sanderson had no right to vote on these mandates in his favour, Mr Fernie would have been higher in the second voting than Mr Muir. Mr Muir ought to have been struck off, and the last or third vote ought to have been taken between the pursuer and Fernie. A new election would therefore, on that assumption, require to take place.”

The pursuer reclaimed.

Scott and Guthrie for him.

Solicitor-General and Asher in answer.

On the question of the validity of the thirty-three mandates which had their dates written upon erasures, the Court held that the Lord Ordinary was wrong, and that these mandates were good.