Scottish Court of Session Decisions

This was an action of reduction and declarator brought by the pursuers Dr Macdonald, John Wilson, and George Robertson Murray, householders and electors of the burgh of Maryhill, against James Robertson, John Morrison Swan, and T. M. Taylor, clerk to the Commissioners of Police for the burgh of Maryhill, for himself and as representing them.

At an election of Commissioners of Police for the burgh of Maryhill, which took place on 7th June 1875, the defenders James Robertson and John Morrison Swan were nominated as candidates along with the pursuers Dr Macdonald and John Wilson. Mr Shaw, the senior magistrate of the burgh, acted as returning officer, and declared after counting the votes that the election had fallen on the defenders Bobertson and Swan.

The pursuers brought this action, concluding for reduction of this declaration of the poll, also of the minutes of the Commissioners of Police recording the election, and of all the grounds and warrant thereof; and for declarator that the defenders Robertson and Swan were not duly elected, or at least that Swan was not eligible for election, and that his pretended election was null and void, and that on a strict scrutiny of the votes being held the pursuers Macdonald and Wilson were duly elected; or otherwise, that in the event of its being found that the defenders' election was null and void, that a new election should take place.

In support of these conclusions they averred—First, That the defender Swan was not a householder in the burgh, and therefore was not eligible for election as a commissioner. That his name was not entered in the valuation roll, or in the register of voters for the time being in force in the said burgh, nor was he a partner of any company or copartnership entered in the said roll or register. He was a partner of the firm of David Swan & Sons, Maryhill, which was constituted on or about the 31st December 1874. Previous to that time there had been a firm of David Swan junior & Company, the partners of which were the defender's father David Swan and Mr John Bickers. This business was acquired by David Swan, who assumed the defender John Morrison Swan as a partner, and the firm of David Swan & Sons was then constituted. The firm of David Swan junior & Co. was entered in the said register of voters, but the firm of David Swan & Sons was not, nor was the latter firm entered in the valuation roll. The said firm of David Swan junior & Co. has ceased to exist, and the said defender never was a partner thereof.

The defenders denied this, and explained that the premises of Mr Swan's firm were duly entered in the valuation roll as of the annual value of £220, being much more than enough to afford the qualification. Mr Swan was at the time of the election, and for months previously had been, a partner of the firm, and he held due statutory authority to poll. The defender also founded on sec. 13 of the Ballot Act (35 and 36 Vict. cap. 33) “no election shall be declared invalid by reason of a non-compliance with the rules contained in the first schedule to this Act, or any mistake in the use of the forms in the second schedule to this Act, if it appears to the tribunal having cognisance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election.”

Secondly, The pursuers averred that a great number of persons voted at the election who were not qualified to do so, in respect that they were in arrears of their assessments.

Thirdly, the pursuers averred—“Further, the said defenders, in contravention of the said Acts, by themselves, or others acting on their behalf, treated the voters, with the view of influencing their votes, at the public-house kept by the defender James Robertson, or his son, in Main Street, Maryhill, and other hotels and public-houses in Maryhill, and kept a free table therein, and also in the Black Bull Inn, Maryhill, for the treating of said voters during the whole of the said polling day. A large number of voters who were so treated, and unduly influenced, voted at the said election in favour of the defenders.”

The defenders, besides denying these averments, pleaded, preliminarily, that the first objection had been disposed of by the returning officer, and that his decision was final, in terms of the 12th sec. of the Police Act (13 and 14 Vict.) viz., “That in case of any difficulty arising as to the qualification or identity of any householder, the same shall be decided by such magistrate or sheriff, whose determination shall be final.” The 13th rule in the first schedule of the Ballot Act provided— “The returning officer shall decide on the validity of any objection made to a nomination paper, and his decision of disallowing the objection

Page: 427↓

shall be final; but if allowing, the same shall be subject to reversal on petition questioning the election or return.” Further, that notice of such objection should have been given before the opening of the poll, whereas no protest had been taken for more than two hours after the poll had opened. The defenders further founded on the 31st, sec. of the Act 13 and 14 Vict. cap. 33, which provides—“Every person who may consider that he ought to have been returned as a commissioner may lodge a complaint in writing, signed by him or by some person duly authorised on his behalf, with the commissioners assembled at such meeting, who shall thereupon remit to a committee of three or five of their number to inquire into the merits of such disputed election, and to report thereon to a subsequent meeting of the commissioners, and such report shall be final.” The pursuers having refused to avail themselves of this remedy, must be held to have waived all objections.

The Lord Ordinary assoilzied the defenders for the reasons stated in the following opinion:—

“This action, brought to set aside the election of the defenders as commissioners of the burgh of Maryhill, and to declare that the pursuers were duly elected, is rested on three grounds:—

1. The first ground is, that the defender Swan was ineligible, not being a householder. The objection, which appears to depend on the validity of his qualification as a member of a partnership owning and occupying premises in the burgh, was stated in writing to the returning officer at the time of the election and repelled by him after hearing parties. The senior magistrate was, as such, returning officer, and being of opinion that the objection regarded Mr Swan's qualification as a householder, I must hold that the decision of the magistrate is final by section 12 of the Police Act. It is plainly undesirable that such an objection should be the subject of litigation in this Court, and I think the Legislature meant that any such, if meant to be taken, should be stated to the magistrate at the time, and be by him finally disposed of. I do not at all found on the provision of the Ballot Act that the decision of the returning officer disallowing an objection made to a nomination paper' shall be final, for this implies no power to decide objections to the eligibility of a candidate, which may be very various, and have no relation whatever to the nomination paper.

2. The second ground of action is, that in contravention of section 34 of the Act 13 and 14 Vict. c. 33, and of section 5 of the Act 31 and 32 Vict. c. 102, ‘voters to the number of from 300 to 400 voted at the election’ who had not paid their rates. It is not alleged that this objection was stated against any voter at the time of tendering his vote, and the proposal of the pursuers is, that the ballot papers shall be ordered to be transmitted, with a view to a scrutiny in this Court, on the general allegation now made. Such a scrutiny in a common law action of reduction and declarator would certainly be inconvenient and costly, and, I think, contrary to the spirit and meaning of the statutes regulating police burgh elections. It is provided no doubt that the votes of persons in arrear of their rates shall be null and void, but this does not affect the validity and finality of an election which is not questioned in terms of the Acts. Now, in order to promote general public convenience by excluding such a litigation as the pursuers propose, regarding a matter so temporary, and of such limited interest as the election of a commissioner under the Police Acts, it is, in my opinion, allowable to construe the Acts as meaning and intending, and in effect providing, that any election which is not challenged in the summary and commodious manner provided by section 31 of 13 and 14 Vict. c. 33, shall be deemed to be valid and final, to the exclusion of any such objection to votes as I am now considering. The procedure there provided applies only when the seat is claimed (as it is here) by a disappointed candidate, but I am disposed to think it is according to the true meaning of the Act that when no such claim is made the objection shall be final as against such an objection as that here presented. I so limit the proposition because there may be objections of a character to warrant action in this Court. I can have no doubt of the power of a committee of commissioners to recover the ballot papers. See Ballot Act, section 64 (b.a.)

3. The third ground of action is upon treating; but for it, as it is here stated (condescendence 12), I know of no authority, and the pursuers' counsel could refer me to none.”

The pursuers reclaimed, and argued—The defender Swan's name did not appear on the valuation roll at the date of the election, nor was he a member of any firm whose name appeared thereon. He could not gain a qualification till the statutory time for revision should arrive. At the time of the election he had no qualification ex facie of the roll, and therefore was incapable of election. It was denied that there was any acquiescence in the return of the candidates. As to the other objections, it was evident that if the allegations were well founded, the election was not conducted according to the provisions of the Ballot Act (35 and 36 Vict. c. 33, sec. 5), and if the votes objected to were rejected there, would be a majority in favour of the pursuers. Hence the election must be declared null; that was the necessary consequence of rejecting the votes.

At advising—