Scottish Court of Session Decisions

This was an action of suspension and interdict, raised by John Walker, W.S., Graham Binny, W.S., and George Cunningham, C.E., all of Edinburgh, complainers; against the Right Honourable William Law, Lord Provost of the City of Edinburgh, and others, respondents. In the note of suspension the complainers prayed the Court to interdict, prohibit, and discharge the respondents, or any of them, to have been elected as managers of the Royal Infirmary of Edinburgh; “As also to interdict, prohibit, and discharge the said respondents Andrew Coventry, James Cowan, David Masson, William White-Millar, and Alexander Nicholson, and each of them, from taking the oaths of office as managers of the said Royal Infirmary, on the footing of their having been elected as such by the said court or meeting of contributors on 1st January 1872; as also from acting, or attempting or professing to act, as such managers in any manner of way; as also to interdict, prohibit, and discharge the whole respondents from preventing or obstructing in any manner of way the said David M'Laren, Henry Duncan Littlejohn, M.D., Edinburgh, Edward L I Blyth, civil engineer, Edinburgh, John Weir, merchant, Edinburgh, David Smith, writer to the signet, Edinburgh, and Andrew Wood, M.D., Edinburgh, from being declared to have been duly elected as managers of the said Royal Infirmary by the said court or meeting of contributors on 1st January 1872, and from preventing or obstructing the said persons, or any of them, from taking office and acting as managers of the said Infirmary, duly elected to that office: as also to interdict, prohibit, and discharge the said Right Honourable William Law, or any other person who may be or act as chairman at the court or meeting of contributors to the said Infirmary, to be held on Monday, 15th January current, or on any other day to which such Court or meeting may be adjourned, from receiving, counting, or giving effect to and from permitting to be received, counted, or given effect to, at the said courtor meeting, any votes of companies or firms, or any of the votes generally known as ‘composite’ votes, being votes given by more persons than one jointly; as also from receiving, counting, or giving effect to, or permitting to be received, counted, orgiven effect to, at the said meeting, any votes by partners, mandatories, or any other persons, in respect of contributions to the funds of the said Infirmary, given by or in the name of companies or firms, or by or in the names of more persons than one jointly; and from declaring the said respondents, Ardrew Coventry, James Cowan, David Masson, William White-Millar, and Alexander Nicholson, or any of them, to have been duly elected as managers of the said Royal Infirmary by the said court or meeting of contributors held on 1st January 1872, as aforesaid.”

The averments upon which the complainers supported this note were as follows:—The constitution of the Royal Infirmary of Edinburgh is regulated principally by the Royal Charter of Incorporation, granted by His Majesty King George II., of date 25th August 1736. This charter “erected and created all contributors to the charitable design therein described into one body, corporate and politic, by the name of the Royal Infirmary of Edinburgh, with power inter alia to make such bye-laws, rules, and orders consistent with the laws of the realm, as might best conduce to the charitable end and purpose above mentioned.” The charter also declared that the affairs of the corporation should be governed and directed by twenty managers, whereof the Lord Provost of the City of Edinburgh for the time being, and in the case of his absence the Dean of Guild, should always be one, and the President of the Royal College of Physicians of Edinburgh, and in case of his absence the Vice-President, should be always another, and the Deacon-Convener of the Crafts of the said City of Edinburgh for the time being should be always another, and the remaining seventeen should be annually elected at the times and in the manner thereinafter directed, out of the classes therein mentioned, being inter alios “six more to be elected out of the number of contributors to the said charity residing in or near the said city, if such can be found ready to undertake the office.” By the said charter it was also provided that the twenty managers for the time, or any seven or more of

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them, should, on the first Monday of January in each year, by a majority of voices, elect and name their successors in the management and direction of the affairs of the said corporation; and the managers were empowered, at their first meeting in January yearly, to appoint any twelve of their own number to be the ordinary managers of the affairs of the corporation for that year, of which ordinary managers five should be a quorum. The charter farther directed that all members of the corporation who shall have contributed £5 sterling each may meet together “on the first Monday of January in each year, and that the said members of the corporation so assembled shall be and be called a general court.” And that they, or a majority of them so assembled, should have full power and authority to make and constitute such bye-laws, ordinances, and regulations of the corporation as to them should seem meet. In pursuance of the power thus conferred upon them, the managers enacted various regulations, and inter alia the following—First, every contributor to the amount of £5 sterling shall be entitled to be a member of the general court of contributors; second, that that court shall be held annually on the first Monday in January; third, that the general court of contributors shall appoint a committee of their number to examine and report upon the papers and books laid before them on the day to which the general court shall think fit to adjourn; and fourth, that the adjourned court shall confirm or amend the report of their committee as they shall see cause. It is also declared in these regulations that “at each such annual election of managers, four, five, or six of the managers of the preceding year shall be changed, and new ones belonging to the same classes shall be chosen in their places, but fewer than four, or more than six, shall not be changed at any annual election.” Then, by the Royal Infirmary Act, 1870, entitled “An Act for authorising the Corporation of the Royal Infirmary of Edinburgh to remove their Infirmary buildings to a more suitable position, and to acquire for that purpose the site of George Watson's Hospital and adjacent lands, and for other purposes,”—section 16, it is enacted that “every person who was immediately previously to the passing of this Act a member of the Corporation, shall continue to be a member thereof; and from and after the passing of this Act the qualification nocessary for a member of the Corporation shall be the contribution by the person desiring to be a member thereof of an amount not less than £5 in one sum, or the continuous annual contribution of an amount not less than £1, after such annual contribution shall have been made during three consecutive years, and every person so qualified shall be a member of the Corporation, and be entitled to be a member of the general court of contributors.” By section 17 of the said Act it is declared that “from and after the first Monday of January, in the year 1871, the number of the managers of the Corporation shall be twentyone, of whom the Lord Provost of the City of Edinburgh, or in his absence the Dean of Guild of the City of Edinburgh, shall ex officio be one, and the other managers shall be appointed annually by the following bodies in the manner hereinafter mentioned, that is to say, inter alios six managers shall be chosen by the general court of contributors, of which six managers two shall be chosen from among the persons who are members of the Corporation, and also at the same time subscribers to the Convalescent House belonging to the Corporation,” and the said section concludes thus—“And each of the bodies hereinbefore empowered to choose one or more of the managers may make such rules as to them shall seem proper, with respect to the manner of choosing such manager or managers.” By section 19 of the said Act it is inter alia declared that “the six managers to be chosen by the general court of contributors shall be so chosen at the meeting of such general court to be held on the first Monday of January in each year, after the passing of this Act, or at some adjournment thereof, and shall hold office as managers from the time of their election until the next annual election by the said general court of contributors.”

Some difficulty having arisen as to the votes at the general courts of contributors, a remit was made, at the suggestion of the scrutineers of January 1871, to the managers to consider and report “the mode in which the votes of contributors at general meetings of the corporation should be taken, and who are entitled to vote.” On 1st January 1872 the managers made their report in accordance with the remit. On the first branch of the remit they recommended the preparation of an annual list of members, and on the second branch they reported that they had taken the opinion of Counsel, and that that opinion was (1) that a firm was not entitled to vote; and (2) that an individual partner was not entitled to vote in the firm name, and that the firm could not authorise him to do so by mandate. After the said report was read, a motion was made, seconded, and agreed to, that, in accordance with the usual practice, it be remitted to a committee of the contributors to bring up a report upon it 14 days after said 1st January 1872, and such a remit was made accordingly. Thereafter Dr Maxwell Nicholson read to the said general court of contributors a motion which had been agreed upon by the managers of the Infirmary for the purpose of being so read, viz.—“The managers resolve strongly to recommend to the contributors that no change in their representatives should be made for the ensuing year, these gentlemeu having acquired experience which is specially useful at the present time, and being connected with the important matters of business not yet completed, affecting alike the efficiency and economy of the present Infirmary, and the building of the new.” And in pursuance of the said recommendation Dr Nicholson moved that the contributors at the said meeting should re-elect their representatives at the board of management during the past year, viz.—Mr David M'Laren, Dr Littlejohn, Mr Edward Blyth, Mr John Weir, Mr David Smith, and Dr Andrew Wood. This motion was duly seconded by Mr Edmund Baxter, W.S. The Lord Provost, Mr Law, then moved a counter motion, that the following gentlemen should be elected as the representatives of the contributors, viz.—Mr Edward Blyth, Mr David M'Laren, Councillor James Cowan, Professor Masson, Mr white Millar, and Mr Alexander Nicolson, advocate. This motion was seconded by Mr Andrew Coventry; and Mr Edward Blyth thereupon intimated his disapprobation of the proposal to make a material change in the administrative body of the Infirmary at the present time—that he refused to take the responsibility of holding office with the removal of nine managers out of twenty-one; and after some further explanations and remarks he concluded by

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requesting the Lord Provost and Mr Coventry to remove his name from the list proposed by them. Sometime afterwards the Lord Provost again read his list, intimating that as Mr Blyth had declined to be proposed he would substitute the name of Mr Coventry. A vote was thereafter called for, which was taken in the first instance by a show of hands, and the Lord Provost intimated that the numbers appeared to be so nearly equal that he must divide the house. Tellers were then appointed, to whom cards were given by the voters or persons claiming to vote; and, on these cards being counted, it was reported that there had voted for the Lord Provost's motion 177, and for Dr Nicholson's motion 168—majority for the Lord Provost's motion 9. A poll was then demanded, and the tellers were appointed to scrutinise the votes, and report the result to the adjourned meeting of contributors, to take place on Monday 15th January. At the end of the meeting the Lord Provost said that in place of Mr Blyth Mr Coventry had been elected, and that the other gentlemen elected were David M'Laren, Councillor James Cowan, Professor Masson, William White Millar, and Alexander Nicolson.

This election the complainers maintained to be bad, on the ground that the majority of votes given by qualified voters, or persons entitled to vote, were given, in point of fact, in support of Dr Nicholson's motion, and that therefore the gentlemen declared to be elected were not really so. The votes objected to as bad, were (1) votes given by companies or firms or partners thereof, and (2) votes in respect solely of contributions to the funds in some composite name, consisting of several separate persons, such as “Messrs A,” or the “Misses B.” It was in consequence of this alleged illegality in the election that this suspension and interdict was raised.

In answer to the above averments, the respondents maintained—that under the terms of said Royal Charter of 25th August 1736, and under the terms of said private Act of Parliament of 20th June 1870, the contribution of the sums of money, in the Charter and Act of Parliament respectively specified, to the funds of the Royal Infirmary, entitled the party contributing to a voice in the deliberation and voting of the contributors, whether such contributor were an individual or a private partnership having persona standi in judicio. They further maintained that the contribution of the sum required to qualify for membership by an individual entitled the contributor to a voice in the deliberations and voting of the said court, although his contribution might have been massed with others, and given in under a common name, such as “Messrs A,” or “Misses B;”—such composite contributions were at all events sufficient to qualify for membership where the amount of the composite contributions, when divided by the number of contributors, was sufficient to give a qualification to each of the persons subscribing collectively.

In support of their averment of the meaning of the clause of the said Royal Charter having reference to membership of the court of contributors, the respondents founded on the contemporaneous and subsequent usage following on said charter. They averred that from the institution of the Royal Infirmary, and continuously to the present time, large sums have been contributed to the funds of the Royal Infirmary by partnerships, in the company name or firm and by members of a family, in the form of composite contributions. The amount contributed by firms, and the number of contributing firms, have progressively increased, and their contributions now constitute a considerable proportion of the annual revenue of the corporation. By the usage of the corporation, originating at the time of its institution, and continued without interruption to the present time. contributing companies and composite contributors have been admitted to all the privileges of members of the corporation, and of its court of contributors. From time immemorial it has been the usage of the court of contributors that companies so qualified were admitted to the deliberations of the court, the company attending the meetings of contributors by one of its partners, and voting on disputed questions. Firms have thus been admitted through their partners, and composite contributors individually, to take part in the proceedings of the Infirmary in three different ways:—(1) As members taking part in the proceedings of the ordinary meetings of the contributors, and voting in divisions. (2) As members appointed by such meetings to act on committees of the court of contributors, for examination of the managers' report on the affairs and accounts of the incorporation generally. (3) As managers of the institution, with no other qualification than the contribution in name of the firm, or composite contribution respectively.

The usage in these three different ways has been uniform and unchallenged during the entire period of the existence of the corporation; and evidence of it appears in all the extant records of the proceedings of the corporation.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 20th July 1872.—The Lord Ordinary, having heard counsel and made avizandum, and considered the debate and whole procoss, Finds, with relation to the terms of the 16th section of ‘The Edinburgh Royal Infirmary Act 1870,’ as referred to in the seventh statement of facts for the complainers, that the enactment therein set forth, to the effect that every person who was, immediately previously to the passing of the said Act, a member of the Corporation, should continue to be a member thereof;’ and from and after the passing of this Act the qualification necessary for a member of the Corporation shall be the contribution by the person desiring to be a member thereof of an amount not less than £5 in one sum, or the continuous annual contribution of an amount not less that £1, after such annual contribution shall have been made during three consecutive years, and every person so qualified shall be a member of the Corporation, and be entitled to be a member of the General Court of Contributors,’ is sufficient, and must, under the due interpretation of the said enactment, be held to include not only individuals contributing the sums of £5 and £1, as therein stated, in their individual character, but also to include and embrace firms, to the effect of entitling such firms to vote, by and through a member thereof, personally appearing, if the sole member, or by any member thereof holding the written authority of the firm, if consisting of more than one partner; but always so that the vote of such firm shall be taken, and have effect, at any general meeting of the Corporation, as the vote of one member of the Corporation only:—And, with the above finding, appoints the case to be enrolled, with a view to further procedure, and to such enquiry,

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as respects those matters of fact in regard to which the parties are not at one, as may be found necessary-reserving in hoc statu the matter of expenses.”

The respondents reclaimed.

It was argued for them that there was no difficulty in incorporating a firm as a member of a corporation, or even a corporation as a member of another corporation, as exemplified in the common case of a Railway Company holding shares in another Railway Company. In the case of the Infirmary there was nothing improper or unnatural in firms contributing, but very much the reverse, and why should firms as contributors not be members of the corporation? The charter authorises — (1) contributions to be received even from firms, and (2) that the affairs of the Infirmary shall be managed by contributors. And there was no difficulty in firms being represented in the management, as was clear from the fact that it had been found perfectly practicable for a hundred and fifty years. As to the contention on the other side, based upon the meaning of the words “firm” and “person,” any such fine distinction as was there insisted on would stop even ordinary business, if carried to its legitimate conclusion. As to composite contributors, it was argued that they contribute as one contributor, and should therefore have a vote as a contributor.

It was argued for the complainers that a firm is not a person in the meaning of the charter of the Royal Infirmary. When a company becomes a member of another, it is for purposes of trade, for which alone a firm is in law recognised as a person. And in the case of Railway Companies—the case instanced on the other side—the fact that the company may be represented by one partner, and that that partner has power to make oath for the company, is not a matter of common law, but a power given by express statute. Again, a company is not a person for all purposes—for example, it cannot hold feudal estate, and that because it is not a person. The Act requires “persons” to be contributors, and it is clear from the whole Act that individual persons are meant, and not a corporation of persons. It is no greater anomaly to exclude a firm than to exclude a corporation, and if a corporation is not excluded, then, by a donation which entitles to a life membership, a person which never dies would become a member for ever, and this could not have been intended. Then, as to the election of managers, the Act requires the corporators electing to have the qualification and to be bodily present, and there is no provision for any one who absents himself having a voice in the election. In regard to this matter also, the word “persons” plainly means individuals, and the contributors are to select a certain number to act as managers. But if a firm were a contributor, and were chosen to act as a manager, the meeting would really be delegating to the firm itself the power to select its representative to sit at the managing board, and so the power of choice given to the court of contributors would be lost. As to the usage, custom may explain but cannot destroy the terms of the charter, and it is impossible by any usage to convert firms into persons, where personal presence is required by the charter.

Magistrates of Wick, M. 1848; Governors of Heriot's Hospital v. M'Donald, 4 W. and S. 101.

The Court then, before answer, allowed the respondents to print and box such excerpts as they might think fit from the records of the Royal Infirmary, bearing upon their allegations of usage.

This was accordingly done, and the result will sufficiently appear from the opinions of the Lord Justice-Clerk and Lord Cowan.

At advising—