Scottish Court of Session Decisions

The householders in Thurso, a burgh of barony, in the year 1852 adopted the Police Act 13 and 14 Vict. cap. 33, and fixed the number of Police Commissioners under the Act at nine. At a meeting of the Commissioners on 13th November 1870 seven members, including the senior and the two junior magistrates, resigned office, and on the 20th November the two remaining Commissioners, who are the defenders in this action, John Coghill and James Tytler Cramond, in pursuance of the 30th section of the Act, nominated the other defenders, Matthew Waters and William H. Sutherland, to act as Commissioners of Police in room of those who resigned. They did this in a letter which they addressed to Messrs Brims & Macdonald, Clerks to the Commissioners of Police, in the following terms:—“Gentlemen, —In terms of the powers given us by 36th section, Act 13 and 14 Vict. cap. 33, we hereby nominate Mr William Sutherland, blacksmith, Barrock Street, Thurso, and Mr Matthew Waters, merchant, Traill Street, Thurso, to act as Commissioners of Police in room of those who resigned. As the above named gentlemen, in virtue of said nomination, are now Commissioners of Police, we hereby request you to give them notice as such to attend the meeting today.” On 11th December, the four, as Commissioners, nominated Mr Coghill to be interim senior magistrate until the annual election of Commissioners, which was to take place on 27th December, and directed him to act as polling sheriff or returning officer at the election. The necessary notices of the day of election and of the names of the candidates were given by the clerk; and on the day of election Mr Coghill, as acting senior magistrate declared the candidates (who did not exceed in number the vacancies to be supplied) to be duly elected. At subsequent meetings magistrates were elected, and certain assessments were imposed.

The pursuer Robert Sime, who was a ratepayer in the burgh assessed on a rental of £5, raised this action to have the whole of these proceedings from and after the nomination of the interim Commissioners on the 20th November reduced and set aside, and to have the assessments quashed, and interdict granted against the collection thereof, mainly on the ground that the said nomination on 27th December 1876 was wholly illegal and invalid, and that consequently all that followed thereon was equally inept.

The pursuers, inter alia, pleaded—(1) There having been no quorum of the statutory number of the said Commissioners of Police after the resignation of the seven Commissioners on the 13th November 1876, operation of the said Statute 13 and 14 Vict. cap. 33, was suspended in the said burgh, and the defenders John Coghill and James Tytler Cramond were not entitled, after said resignations, to act as Police Commissioners, or exercise any of the powers or functions of that office. (2) The said defenders had no power or authority to fill up the vacancies caused by the said resignations, and the pretended nomination or appointment by them of the other defenders William Sutherland and Matthew Waters is null and void. (3) Assuming the said defenders to have had power to fill up the other vacancies, the said nomination or appointment of the other two defenders to supply seven vacancies was null and void. (4) The nomination or election of the defender John Coghill as interim senior Magistrate of Police of the said burgh was illegal, invalid, and inept, in respect (first) That the parties by whom the appointment was made had no power or authority to do “so; (second) That no such office is recognised or sanctioned by the said statute.”

The clauses of the Statute 13 and 14 Vict. cap. 33, upon the construction of which the case turned, and the arguments on either side, are fully stated in the Lord Ordinary's note and in the opinion of the Court.

The Lord Ordinary ( Curriehill) assoilzied the defenders from the conclusions of the summons, and added the following note:—

Note.—[ After stating the facts)—The questions thus raised are not free from difficulty, and are of very general importance. The main grounds of reduction are those set forth in the first four pleas-in-law for the pursuer—indeed, if these are not well founded the whole action is untenable.

On referring' to these pleas it will be seen that the whole questions raised turn upon the constructions of sections 27 to 43 of the Act 13 and 14 Victoria, cap. 33, which occur in the subdivision of the statute which deals with the election and duties of Commissioners and Magistrates of Police.

Section 27 provides that in any burgh adopting the Act the Commissioners to be elected should be in number either 6, 9, or 12, as might be determined by the householders; and by the 41st it is provided that one-third of the Commissioners must be present at all meetings to constitute a quorum. Three Commissioners therefore constituted a quorum of the entire statutory number of Commissioners fixed for the burgh of Thurso; and the first and leading objection of the pursuer is that, after the resignation of the seven Commissioners on 13th November 1876 there existed no quorum of the statutory number of Commissioners;

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that in consequence thereof the operation of the statute was suspended in the burgh; that the defenders John Coghill and James Tytler Cramond were not entitled, after said resignations, to act as Police Commissioners or exercise any of the powers or functions of that office; and, in particular, that they had no power or authority to fill up the vacancies caused by these resignations. I am of opinion that, according to the sound construction of the statute, this objection of the pursuer is ill founded. The statute provides in sections 29, 30, and 31 for the first election of Commissioners under the Act, and for the first meeting of the Commissioners so elected. Section 32 provides that the Commissioners shall at that meeting, or an adjourned meeting, elect from among their own number a senior and two junior magistrates of police. Sections 33 and 34 provide that one-third of the Commissioners shall go annually out of office, and that their places shall be annually supplied by an equal number of new Commissioners—the outgoing Commissioners being eligible for re-election. And section 35 provides that where any Magistrate of Police shall be in the third of the Commissioners going out of office, the place of such magistrate shall be supplied by election by the Commissioners as Boon as the full number thereof shall have been completed by the annual election of the new third—it being provided that the senior magistrate should always remain in office for the period of three years.

After thus providing for the first election of Commissioners and Magistrates, and for the ordinary annual election of these officers, the statute, in section 36, makes special provision for supplying vacancies occurring before the period for the annual election arrives. The words of the section are—‘That in case the place of any of the Commissioners or Magistrates of Police, elected as aforesaid, shall become vacant by death, refusal to act, disqualification, or resignation, then and in such cases it shall be lawful for the remaining Commissioners and Magistrates of Police to nominate persons duly qualified to supply such vacancies, and each person so nominated shall have and enjoy the same powers and privileges as the person in whose stead he is nominated, and shall remain in office until the next period of election, when he shall go out of office, and the vacancy shall be supplied by the householders of the burgh.’

Now, unless the section is controlled or modified by some other part of the statute, it appears to me to be clear that the appointment of interim Commissioners by Messrs Coghill and Cramond, the two who remained after the resignation of their seven colleagues, was fairly within the powers conferred by the section. It is the Commissioners and Magistrates, be they few or many, who remain after the resignation ‘of any of the Commissioners or Magistrates, ’ that are to have power of supplying the vacancies by nominating qualified persons to hold the vacant offices until the next annual election. There is no duty imposed upon them of filling up the vacancies, and they may, in my opinion, supply them in whole or in part, or not at all.

But the pursuer alleges that this power cannot be exercised by any less number than three, being one-third of the statutory number of Commissioners; and he refers to section 41 in support of that proposition. The words of that section are—That the whole Commissioners shall be cited to attend all meetings, both special and statutory, … and the senior magistrate present, or in the absence of any magistrate, such one of the Commissioners as shall be chosen by the meeting shall preside in all meetings of the Commissioners, … provided always that one-third of the Commissioners must be present at all meetings to constitute a quorum.’ If the pursuer's construction of this section is the sound one, it necessarily follows that the burgh of Thurso is at present disfranchised—a most undesirable result. And if the section can be read in such a way as not to produce that result, it is the duty of the Court to place upon it such favourable construction. The pursuer maintains that the words ‘the whole Commissioners' and ‘Commissioners, ’ where they occur in the section, mean the full statutory number of nine. But it is obvious that where, from any cause, the number of the Commissioners actually holding office is less than the statutory number, this section could not be literally and strictly complied with, and no legal meeting of the Commissioners could be held at all. This, however, is not, in my opinion, the true reading of the statute. I think that when the section directs ‘the whole Commissioners to be cited to attend all meetings, ’ what is meant is that the whole Commissioners actually holding office for the time shall be cited; and, if so, it follows that ‘the quorum’ mentioned at the close of the section is one-third of the Commissioners actually holding office at the time. And I am therefore of opinion that, as the new or interim Commissioners were nominated by the whole Commissioners actually holding office on 20th November 187G, the requirements of sections 60 and 41 have been duly complied with. It must not be forgotten that any nomination under section 36 is merely an interim arrangement to enable the business of the burgh to be carried on until the next annual election, and I think that section was enacted for the very purpose of obviating the difficulties which had often been in former times experienced in municipal bodies as to the number necessary to form a quorum where the number of members had been reduced by death or resignation below the number fixed by the set of the corporation. On this point reference may be made to the case of Fraser v. Rose, 15 Sh. 1250.

But the pursuer farther maintains that, even if the two defenders Coghill and Cramond, as the remaining two Commissioners, had power to fill up the vacancies, the nomination or appointment of only two persons to supply seven vacancies was null and void. I confess that I have more difficulty in dealing with this than with the former objection. On the one hand, as I have already said, I think that the two remaining Commissioners were not bound to fill up any of the vacancies, and that they were entitled to leave the whole unsupplied, ort o fill up only some of them. But, on the other hand, I think section 36 seems to point at each interim nomination being expressly made in room of some former individual Commissioner. But whether this be the right view of the statute or not, I have come to be of opinion that, even if the interim nomination in question of the two new Commissioners made on 20th November was irregular, the subsequent proceedings of Messrs Coghill and Cramond were

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not thereby vitiated. These two Commissioners were, as I think, entitled still to execute all the powers conferred upon them ‘as remaining Commissioners by section 36; and in virtue of these powers, they being both present at the meeting on the 11th December, were entitled to appoint, and did validly appoint, Mr Coghill to be interim senior magistrate, and to preside at the annual election on 27th December. I cannot hold that in the circumstances the presence of the two new Commissioners, even assuming them to have been irregularly nominated, invalidated the proceedings of the two old Commissioners. If so, all the subsequent procedure was unchallengeable; and on the whole matter I am of opinion that the defenders are entitled to absolvitor, with expenses.”

The pursuer reclaimed.

Authorities— Meiklejohn v. Masterton, M. App. 17; Anderson v. Masterlon, Nov. 6, 1868, 7 Macph. 81.

The defenders' counsel were not called on.

At advising—