Scottish Court of Session Decisions

This was an action of reduction, declarator, and payment at the instance of William Garth Thomson, seed merchant, Glasgow, and others, all councillors of the royal burgh of Rutherglen, and registered voters there, against Robert Hamilton, calenderer, Glasgow, and others, also councillors of that burgh, and George Gray, the town-clerk. The conclusions of the summons were—(1) for reduction of a minute of the town-council dated 5th November 1875, whereby it was set forth that the defender Hamilton had, inter alios, been elected a bailie of the burgh, and also for reduction of the pretended election; (2) for declarator that Hamilton was not lawfully elected, but had ceased before the 5th November 1875 to be a councillor, and should now be ordained to give up office; and (3) for payment by the defenders of £300 for wilful contravention of the Act 3 and 4 Will. IV. cap. 76.

By the usage of the burgh of Rutherglen the number of members of council was eighteen, and the election of councillors fell to be regulated, in the first place, by the Statute 3 and 4 Will. IV. cap. 76. The first Tuesday of November was the day fixed under the

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statute for the election, and by the 15th section of the Act it was provided that on that day in November 1834, and in every succeeding year, the electors should elect “one-third part, or as nearly as may be 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; providing always that any councillor so going out of office shall be capable of being immediately re-elected.”

The 16th section of that Act enacted “that upon the first Tuesday of November 1834, and in every succeeding year, one-third, or a number as near as may be to one-third, of the whole council of each such burgh shall go out of office; and in the said year 1834 the third who shall go out shall consist of the councillors who had the smallest number of votes at the election of councillors in this present year. And in the succeeding year 1835 the third of the councillors first elected under this Act, who shall go out, shall consist of the councillors who, at such first election under this Act, had the next smallest number of votes (the majority of the council always determining, where the votes for any such person shall have been equal, who shall be the persons to retire), and thereafter the third of the councillors so annually going out of office shall always consist of the councillors who have been longest in office.”

The 24th section enacted “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 thereby 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 voice 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.”

The 25th section 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 hereinbefore provided, at a meeting to be called on five days' notice by the town-clerk, by intimation in writing to each of such remaining members of the council; but any councillor, magistrate, or office-bearer so elected ad interim shall go out of office on the first Tuesday of November next ensuing his election, and the vacancy thereby occurring shall be supplied at the next annual election of councillors and magistrates or office-bearers in such burgh,” &c.

In each of the years 1871, 1872, and 1873, six members were elected to the council, and in the last of these years one of the six councillors who had been elected in November 1871 became provost. His term of office was therefore lengthened, in terms of the statute, by two years beyond November 1874, at which date he would otherwise have retired.

Before November 1874 one of the councillors elected in 1872 died, and the vacancy fell to be filled up at the annual election in November following. The provost's time as a councillor also expired at that date, and it was contended by the pursuer that the councillor who had the lowest number of votes of those then two years in office should in that case have in addition retired; that so six should have retired and seven been elected, one to fill the vacancy caused by death. The fact was that only six were elected, and it was stated in the condescendence that “the adoption of this course was the beginning of the system against which the pursuers have protested.”

Before November 1875 one of the councillors elected in 1873 resigned, and the vacancy fell to be filled up in that month, at which time also the pursuers averred that the councillor who had the smallest number of votes of those two years in office (the defender Hamilton) should likewise have retired in place of the provost, who continued in the council in virtue of his office. In that way the six who fell to retire by rotation, and likewise Hamilton, should have gone out of office, and seven members, six to take the place of those retiring by rotation, and one the place of him who had resigned, should have been elected. Instead of that, only four members, the survivors of the six who had been elected in 1872, retired, and six new members were elected. Of the two predeceasing members elected in 1872, one had died (as above-mentioned) in 1874, and his place had been supplied at the annual election of that year, while the other had died in the course of the year 1875.

The pursuers averred that by the course followed no one had been elected to fill the place vacant by the resignation, and Hamilton had been allowed to retain his seat and was afterwards chosen bailie: therein the defenders had wilfully contravened the provisions of the statute.

The defenders answered that the system they had adopted had never resulted in increasing the total number of councillors beyond what usage had established; that they had acted according to the true meaning of the statute by securing an annual renewal of the council to the extent of one-third; and also enabling each councillor, so far as possible, to serve his full term of three years.

The pursuers pleaded, inter alia,—“(1) Irrespective altogether of vacancies occasioned by the death or resignation of its members, one third of the council must annually retire from office, under section 16 of the Act 3 and 4 William IV. cap. 76. (2) If a councillor, who would otherwise have been compelled to retire in terms of that section, has his term of office prolonged by reason of his being elected provost or treasurer, still a full third must go out; and the councillor who must retire instead of him is the councillor who had the smallest number of votes of the councillors two years in office.”

The defenders pleaded, inter alia,—“(4) On a true construction of section 16 of the Act 3 and 4 Will. IV. cap. 76, it is not necessary that more than one-third, or a number as near as may be to one-third, of the whole council of a burgh shall go out of office in each year. (5) There is no warrant in the statutes, or any of them, for compelling

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a councillor to retire merely because he has been elected by the smallest number of votes of his year. (6) Assuming it to be necessary that there should be a vacancy in the council in order to permit of the provost remaining in office beyond his natural term as a councillor, the magistrates and council are entitled to accept a vacancy caused by death or resignation as sufficient to meet that requirement.”

The Lord Ordinary upon 12th January 1876 pronounced the following interlocutor, with note, in which, and in the opinions afterwards delivered by the Court, the arguments used are sufficiently detailed:—“The Lord Ordinary of consent holds the production satisfied and the defences given in and the record closed as the defences and record on the merits, under reservation of the preliminary pleas, and having heard counsel on the whole cause and considered the record and process, sustains the defences, assoilzies the defenders from the conclusions of the action, and decerns: Finds the pursuers liable in expenses; and remits the account when lodged to the Auditor to tax and report.

Note.—The leading conclusion is for reduction of the defender Robert Hamilton's election as a bailie of the royal burgh of Rutherglen in November 1875, on the ground that he was ineligible, not being a councillor of the burgh. He was elected a councillor in November 1873, and the question whether or not he was a councillor when elected a bailie in November 1875 depends on the soundness or unsoundness of the pursuer's contention that he ought to have gone out of office prior to the election of that year, under section 16 of the Act 3 and 4 William IV. cap. 76. This again depends on the construction of the statute as applicable to the facts averred by the pursuers.

To take the facts first—these, as averred by the pursuers, and so far as material, appear to be—1st, That by the set or usage of the burgh the full number of councillors is eighteen; 2d, That Hamilton was duly elected a councillor in November 1873, as one of the six then elected to fill the places of the third of the council who then went out as having been longest in office, he having the smallest number of votes of the six elected; 3d, That Scouler, a councillor elected on November 1871, was in November 1873 elected provost; 4th, That neither in 1874 nor 1875 did a full third of the council go out under section 16 of the Act, but in 1874 only five, and in 1875 only four. The other facts will be most intelligibly stated after noticing the provisions of the Act as explanatory of how it happened that six councillors did not go out under the Act in 1874 and 1875, but only five in the one year and four in the other.

The most important clause of the Act with reference to the present question is clause 16, quoted in condescendence V. It enacts generally that in November 1834, and in every subsequent year, ‘one-third, or a number as near as may be to one-third, of the council’ of each burgh shall go out of office. In 1834 the selection of councillors to go out was necessarily made from those elected in 1833, for there were no others, except it may be persons who had been appointed ad interim to fill vacancies under section 25, and who, if there were such, went out under the provisions of that clause. In 1835 the case was to a certain extent different, and it is to be observed that only councillors elected in 1833 are required to go out in 1835.

The criterion in both years is ‘number of votes,’ the third having the smallest number being appointed to go out in 1834, and the third having the next smallest number being appointed to go out in 1835. There is no provision for the very unlikely but still possible event of the number of councillors who had been elected in 1833 being, before the election of 1834 or 1835, reduced by ‘death, disability, or resignation’ below one-third of the whole number of councillors, according to the set or usage of the burgh, other than the words ‘one-third, or a number as near as may be to one-third.’ I should myself think these words sufficient to meet the case, and had it occurred I should think that it would have been so held rather than that any deficiency of a full third should be made up of councillors elected in 1834. It is necessary to consider this point in construing the words which I have quoted, which, according to the contention of the pursuers (with which I do not agree), refer only to the case of a burgh in which the whole number of councillors, according to the set or usage, is not exactly divisible by 3.

The part of the clause which has governed the matter since 1835 is in these words—‘And thereafter the third of councillors so annually going out of office, shall ‘always consist of the councillors who have been longest in office.’

Taking the clause as a whole, I think the provision applicable to the first three years may be regarded as of the nature of a temporary expedient necessary to be resorted to prior to the complete development in operation of the scheme of the Act, which scheme is, I think, clearly that every councillor shall have three years of office and no more, the machinery by which this is secured being that in every year after 1835 ‘one-third, or a number as near as may be to one-third, of the whole council,’ and which shall always consist of the councillors who have been longest in office,’ shall go out.

After the scheme of the Act came into full operation, on the expiry of the first three years, the comparative number of votes by which any councillor was originally elected is no criterion for going out. This criterion, which is by the Act limited to councillors elected in 1833, has no application to councillors subsequently elected, for there is no rule of the common law that I know of which would warrant the Court in resorting to it.

The next important clause of the Act is the 24th, which enacts that a provost or treasurer ‘shall always remain in office for the period of three years.’ This is in truth a qualification of section 16, for the admitted effect of it is to extend the duration of the office of councillor in the case of any person who may be elected provost or treasurer in his second or third year.

Accordingly, Mr Scouler (a councillor elected in 1871) being elected provost in November 1873, his term of office as councillor ‘was lengthened by two years, in terms of the foresaid statute, beyond 2d November 1874, at which date, had he not been elected provost, he would have fallen to retire’ (condescendence XII).

But the pursuers, while thus admitting that

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Mr Scouler was not required to go out in November 1874, although he was then one of the six councillors (a full third of the council) who had been longest in office, contend that the full third ought to have been made up, by putting out in his stead a councillor elected in 1872, and who was therefore not of those ‘who have been longest in office,’ and, in the absence of any other criterion of selection, suggest that of number of votes—which had been enacted as the criterion for the elections of 1834 and 1835. The pursuers do not indeed seek any remedy for what was done in 1874, but only refer to it as an irregularity, and as ‘the beginning of the system against which the pursuers have protested’ (condescendence XIV.). In my opinion there was no irregularity. I think not only that the provost properly remained in the council, but that the statute was satisfied by the going out of the five councillors who were elected at the same time with him (November 1871), and were the whole councillors who had been longest in office, although less by one than a third of the council, that one being enabled to remain by section 24, which to this extent qualifies section 16.

The point is only unnecessarily confused by referring to the death of Mr Wallace before November 1874. If his death occurred long before 1874, the council may have erred in not making an interim appointment. But his place was filled at the election in November, just as it must have been had there been an interim appointment; and his death in no way affects the present question. The resignation of Mr Alexander before November 1875 (he having been elected in 1873) is an equally uninteresting and unimportant incident; and I pass it by accordingly.

The pursuers' case really turns on the election of 1875—the question being whether or not the defender Robert Hamilton (who was elected in November 1873) ought then to have gone out under section 16 of the Act?

Now, leaving out of view the case of the provost (elected councillor in 1871), the councillors who had been longest in office were these (six in number) who had been elected in November 1872, and whose names are given in condescendence X. Had these councillors all been alive and in office in November 1875, it is clear that they must all have gone out under section 16 of the Act. But two of them died before November 1875, that is, between November 1874 and November 1875. There were therefore only four in life to go out under the Act, and they went out. The other two having gone out by death, the question is, whether their turn to go out under the Act ought to have been supplied by selecting (on the criterion of number of votes) councillors who had been elected in 1873, and who were therefore not of the number of the council who had been longest in office. If my conception of the case and of the Act of Parliament is not fundamentally erroneous, the pursuers' contention here is so obviously untenable that I should waste words and consume time unprofitably by arguing the matter at large. Clause 25 was especially relied on in argument by the pursuers' counsel; but why, he failed to convey to my mind. In the case of death or disability the clause distinguishes between the case of a party who would at the next election have gone out under the Act, and one who would not,—but to this extent only that the person elected in room of the dead or disabled councillor shall in the latter case be elected as ‘an additional councillor,’ and in the other not. The language is inaccurate, but the meaning, which need hardly be expressed, is simply this, that where the party dying, resigning, or disabled would not have gone out under the Act prior to the election of his successor, the election of his successor shall be deemed the election of an additional councillor— i.e., additional to those required to fill vacancies caused by councillors going out under the Act, but, if otherwise, that no councillor shall be elected ‘additional’ to those required by such going out; or, in other words, that the circumstance of the going out of a councillor being anticipated by his death or resignation before the election shall make no difference with respect to the rights of his constituents to elect a successor.

“I have already sufficiently indicated my opinion that the death or resignation of a councillor not of the number of those who, as having been longest in office, are required to go out in the following November, is immaterial to the question. The place of such a councillor dying or resigning must, whether or not it shall have been filled by an interim appointment, be supplied by a new election in the following November, under section 25 of the Act, without reference to section 16. But the death or resignation of a councillor who, had he not died or resigned, would have gone out, under section 16, in the following November, is another matter. In that case also an interim appointment may be made, but whether made or not, there is only one place to be filled when the November election arrives—thus, when in November 1675 it appeared that of the six councillors who, had they all lived, would have gone out, two were dead, I am very clearly of opinion that the vacancies to be filled were not raised to eight, but remained at six. Upon this view the election of 1875 proceeded. Six councillors were then elected in room of the six who had been elected in 1872, and who were then all removed from the council, two of them by death immediately before the election, and the remaining four by going out under section 16 of the Act. The case would not have been varied (although the pursuers seem to think otherwise) had the places vacated by death been supplied by interim appointments.

The primary conclusion thus failing, the subsidiary conclusion must fail also. I must say, however, that in my opinion the subsidiary conclusion must fail in any view—there being no ground whatever that I can see for attributing to the defenders a wilful violation of the Act. My opinion that they have acted in accordance with the Act would probably be an answer to the imputation of wilful violation, even in the judgment of those who may think that I and they are in error.”

The pursuers reclaimed, but at the debate withdrew their conclusion for payment of penalties.

It was agreed that the Lord Ordinary had erred in thinking, as stated in his note, that two councillors had died immediately before the election of 1875. One only had died then, the other before the election of 1874.

At advising—