Scottish Court of Session Decisions

At a meeting of the Parochial Board of the Parish of St Boswells, held 23d August 1873, the board proceeded to elect a registrar. The names of two candidates for the office, Mr Laurie (the respondent) and Mr Turnbull, were duly proposed and seconded. Mandates from a number of members of the board were handed in. Previous to the vote being taken the chairman decided that an election of registrar by the Parochial Board could only take place by a majority of the votes of the members present at that meeting specially called for the purpose, and consequently that all the votes founded on mandate must be excluded. The result of the vote was in favour of the appellant. Thereupon Mr Thomson and others, who held mandates authorising them to vote at said meeting, protested against the validity of the election, and appealed to the Sheriff, as provided by the Registration Act, praying him to recall the appointment of the said Mr Laurie, in respect his election was illegal owing to the exclusion of the votes of the mandatories.

On 11th December 1873, the Sheriff ( Pattison) pronounced the following interlocutor:—“‘The Sheriff having resumed consideration of this case, recalls the deliverance of the meeting of the Parochial Board of St Boswells, held on 23d August last, declaring Mr Thomas Laurie to be elected registrar of the parish of St Boswells: Finds that heritors being members of the Parochial Board may competently vote at such meetings by an agent or mandatory duly appointed: Finds that there were several mandates from such heritors produced at the said meeting, and that the mandatories thereby appointed were not allowed to vote: Finds that there was no proper election of registrar at said meeting, and that the said Thomas Laurie was not duly elected registrar: Appoints the Inspector of Poor to call a special meeting for the purpose of electing the registrar of said parish, and that in such and the like manner as the ordinary meeting of the parochial board are called under the Act passed in the eighth and ninth years of the reign of Her present Majesty, chapter eighty-three, entituled ‘An act for the amendment and better administration of the laws relating to the relief of the poor in Scotland,’ and decerns.

Note.—The question involved in the present case is one of considerable difficulty, and it is not without much and repeated consideration that the Sheriff has arrived at the conclusion indicated by his interlocutor.

The appointment of registrar is regulated by the statute 17 & 18 Victoria, cap. 80. The clauses to be looked to are sections 8, 9, and 12 of that statute. By section 8 it is provided that the registrar shall be elected ‘in manner hereinafter provided’ by the Parochial Board of each parish appointed and acting under the Poor Law Amendment Act, and it is declared that such Parochial Board shall be judges of the qualification of the person to be elected registrar.

By section 9, the meetings of the Parochial Board ‘for the trial of the qualifications and election of registrar’ are appointed to be called by the Inspector of the Poor acting under said Act, in the same manner as the ordinary meetings of the Parochial Board are called under the said Act.

By the 12th section, it is provided that when there shall be a vacancy in the office of registrar, the Parochial Board shall, subject to the provisions thereinbefore contained, by a majority of the votes of the members present at a meeting specially called or the purpose, elect the registrar of the parish.

‘By these provisions the Sheriff holds that the statute of the 17 & 18th Victoria adopts the I arochial Board of the parish as an already existing body, with all its conditions and attributes, as appointed and acting under the Poor Law Act, and commits to that body the election of registrar. Now the Parochial Board, as appointed under the Poor Law Act in parishes not burghal, consists of the owners of lands and heritages of the yearly value of £20 and upwards; of the provost and bailies of any royal burgh in such parish, if any; of the kirk-session of such parish, and of such number of elected members to be elected in manner therein-mentioned, as shall be fixed by the Board of Supervision. The Parochial Board of the parish of St Boswells is accordingly a board so constituted; now, it is a condition provided by the same statute of such board, that it shall ‘be competent for any heritor being a member of the Parochial Board to appoint as heretofore, by writing under his hand, any other person to be his agent or mandatory to act and vote for him at such board, and such appointment shall remain in force till recalled, and such writing of appointment is hereby declared to be valid and lawful, although the paper whereon it is written should not be stamped.’

The meaning of this plainly is, that at every meeting of the Parochial Board for whatever purpose, the heritors who are members of that board may act by their mandatories duly appointed. The act of the mandatory—in other words his presence at the meeting—is equivalent to that of the heritor. This was an essential condition in the constitution of the Parochial Board of St Boswells, as existing at the date of the Registration Acts, and in all the elections and resolutions of the board, governed of course by the majority of the votes at the meeting, such mandatories are held to be members of the meeting, not in their own right, but in the right of the mandant, and their presence and vote are equivalent to the vote and presence of the mandant.

All this must be kept in view in considering and construing the Regulation Act. And there can be no doubt that, unless controlled by other portions of the statute, the right to act and vote at the election of registrar could be exercised by heritors, members of the Parochial Board, by mandatory duly appointed: such undoubtedly would be

Page: 209↓

the effect of the eighth section of the statute, which is the leading enactment taken by himself.

It is said that this section is qualified by the words following shall be elected, viz.:—‘in manner hereinafter provided,’ and that these words refer to the provision in the 12th section, providing that the election shall be by a majority of the votes of the members present at a meeting specially called for the purpose. It is to be observed, however, that the provision in section 12 is made ‘subject to the provisions hereinbefore contained,’ which in like manner qualifies the provision that the election shall be by a majority of the votes of the persons present. In short, it comes to this, that the 8th, 9th, and 12th sections must be read together, for they refer to one another. Besides, the words in the 8th section ‘hereinafter provided,’ refer also to what follows in the same section, and to the provisions in the 9th section as to how and when the meetings of the board are to be called and held. They do not refer exclusively to section 12.

It is very strongly urged that because of these words in section 8, and of the words in section 12, that the board should elect the registrar by a majority of the votes of the members present at a meeting specially called for that purpose, the statutory provision regulating the constitution of the Parochial Board, and giving the right to heritors to act and vote thereat by mandatories, is superseded or limited, and that the election of the registrar is confined to the individual members personally present at the election meeting.

The Sheriff cannot adopt this rigid interpretation. He does not think that much force is to be attributed to the words ‘present at the meeting.’ The word board implies meetings of the board, because all boards must and do act by meetings of the persons constituting the board, and the Sheriff does not think that the words ‘a majority of the votes of persons present at the meeting’ is anything more than a majority of votes at a meeting of the board specially called for the purpose. For it must be remembered that this provision is accompanied with a reference back to the provisions ‘hereinbefore contained,’ and the previous provisions, as already remarked, deal with the Parochial Board as an existing body, with all the qualifications and conditions in its constitution under the Poor Law Statute. Reading it so, members present may fairly be held to mean present by themselves, and by their duly appointed agents or mandatories so far as that is competent. For it must be remembered that it is not every member of the Parochial Board who can act and vote by a mandatory. Neither the provost and bailies of a royal burgh—where there are such in a parish—nor the members of the kirk-session, nor the elected members of the board, can do so; these last can only vote personally at any meeting. The heritors can vote by mandatories. The provision is to be read with reference to this state of matters, that is, as to those who are heritors present by themselves, or mandatories duly authorised, and as to the others in the only way which they can act or vote—namely, in their own persons. The Sheriff is the more inclined to this interpretation, because the other interpretation would be introducing a limitation into the rights of a very important portion of the members of the Parochial Board, which is not to be lightly inferred, and would in many instances practically exclude them from voting, while the interpretation which the Sheriff prefers, gives in his opinion due effect to the words of the section.

It was suggested, that while the meetings of the Parochial Board as to the poor were proper parochial matters, that the election of registrar was not so, and was something, as it were, superinduced upon the proper business of the board. The Sheriff does not think there is any force in this argument. Indeed, he rather thinks that the registration of birth, deaths, and marriages was a matter of parochial administration under the old Canon Law before any Poor Law existed. Independent of that, however, he conceives there can be no business more properly connected with the parish than that of such registration.

But it was said that the words in the beginning of the 9th section, speaking of the meetings of the Parochial Board, ‘for the trial of the qualifications and the election of a registrar’ imply that the parties who elect must be present at the meeting for the trial, and that therefore the words of the 12th section must be limited to the members of the board actually present. But this is just idem per idem. For if the trial of the qualifications of the registrar is an act to be done by the Parochial Board, then by the very words of the statute the members of the board who are heritors can act in this matter,—that is, can do this by mandatories. But these words as to trial occur only in the section directing how the meetings are to be called. It is nowhere provided that the Parochial Board shall ‘take trial of the qualifications’ as if they were dealing with the admission of a member into an Incorporation of Tailors, or the like, whose qualifications to do any piece of work could be put to trial. The only enactment on the subject is in section 8, that the Parochial Board shall be ‘judges of the qualifications of persons to be elected registrar.’ It does not say how they are to qualify themselves to be judges. It does not say they are to put candidates to a trial, a thing which would not be applicable to such an office at all, and therefore this suggestion has no weight with the Sheriff.”

The respondent appealed to the First Division of the Court of Session.

At advising—