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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Craigie and Others v. The Commissioners of Supply for The County of Aberdeen [1879] ScotLR 17_5_1 (17 October 1879)
URL: http://www.bailii.org/scot/cases/ScotCS/1879/17SLR0005_1.html
Cite as: [1879] SLR 17_5_1, [1879] ScotLR 17_5_1
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
v.
Facts:
A factor acting for a commissioner of supply does not vote by proxy, but under a separate qualification as commissioner established by the Valuation of Lands Act 1854, and however many qualifications he may have, he is only entitled to one vote.
By the Act 17 and 18 Vict. cap. 91, entituled an Act for the Valuation of Lands and Heritages in Scotland, sec. 19, it was, inter alia, provided—“From and after the passing of this Act the qualification requisite for a commissioner of supply in any county shall be the being named as an ex officio commissioner of supply in any act of supply, or the being proprietor, or the husband
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of any proprietor, infeft in liferent, or in fee not burdened with a liferent, in lands and heritages within such county of the yearly rent or value, in terms of this Act, of at least one hundred pounds, or the being eldest son and heir-apparent of a proprietor infeft in fee, not burdened with a liferent, in lands and heritages within such county of the yearly rent or value, in terms of this Act, of four hundred pounds; and the factor of any proprietor or proprietors infeft, either in liferent or in fee unburdened as aforesaid, in lands and heritages within such county of the yearly rent or value, in terms of this Act, of eight hundred pounds, shall be qualified to act as a commissioner of supply in the absence of such proprietor or proprietors.” The pursuers in this action—Mr J. Burnett Craigie of Linton, Mr J. F. G. Shireffs Gordon of Craig, and Mr Francis Edmond of Kingswells—were all proprietors of lands in the county of Aberdeen of the yearly value of £800 and upwards, and Mr Edmond was also factor for the other two gentlemen. The question raised in the action was whether at meetings of commissioners of supply for the county Mr Edmnod, in addition to his own vote as a proprietor to the requisite amount, was also entitled to a separate vote for each of the estates of Linton and Craig, as representing them in the absenne of the proprietors.
By The Commissioners of Supply (Scotland) Act 1856 (19 and 20 Vict. cap. 93), sec. 1, it was provided that “All persons, being males and of full age, qualified in terms of the nineteenth section of the Act of the seventeenth and eighteenth years of Queen Victoria, chapter ninety-one, for the valuation of lands and heritages in Scotland,” otherwise than by nomination ex officio, for acting as commissioners of supply in any county in Scotland, shall, without being named in an act of supply, be commissioners of supply of such county while so qualified, and shall as such be entitled and have power to vote and act as freely and to the like effect as if they had been so named.” By the same Act, provision was made for the appointment of a committee of commissioners to dispose of claims to be enrolled as commissioners and objections thereto. By the 5th section the clerk of supply was directed, on or before the 31st December in each year, to make up the list of commissioners of supply, which, subject to corrections in accordance with judgments on appeal, “shall, till the next list shall have been completed and authenticated, be conclusive as to the right of acting and voting as commissioners of supply.”
In the list of commissioners for the year 1878 Mr Edmond's name appeared three times, viz., for himself as a proprietor, and also as factor for the other two pursuers. At the meeting of commissioners on April 30, 1879, Mr Edmond moved, inter alia, “…. it is therefore resolved that every commissioner of supply entered in the said list as proprietor, and also as factor for one proprietor, or as factor for more proprietors than one, shall, till next list be completed and authenticated, be entitled without objection to give one vote on behalf of each of his absent constituents, and also, if a proprietor in the list, one vote in respect of his qualification as a proprietor.” This motion was put to the meeting and lost, the convener, Mr Forbes Irvine of Drum, refusing to receive Mr Edmond's votes as factor for the other pursuers.
The present action was thereafter raised at the instance of the three above-named gentlemen against the commissioners and Mr Forbes Irvine as their convener, concluding for declarator that Mr Edmond was entitled to exercise three votes.
The Lord Ordinary (
Rutherfurd Clark ) assoilzied the defenders from the conclusions of the action, adding the following note:—“ Note.—The question in this case is whether at the meetings of the commissioners of supply a person, himself qualified as the owner of land, can give a plural vote because he is at the same time the factor of other commissioners.
The commissioners exercise functions partly judicial and partly administrative. See Advocate-General, 4 Macq. 387. It was conceded that before the Valuation Act of 1854 these functions must be exercised personally and not by proxy. But the pursuers maintained that that Act permitted commissioners of supply to act by their factors, and that such factor could vote for each of his constituents, and that if the factor possessed a personal qualification he could give his own as well as his factorial vote.
To the Lord Ordinary it appears that the Act of 1854 does not authorise a commissioner of supply to act by proxy or through a mandatory. It deals only with the qualification of commissioners. It lowers the former qualification of value and introduces a new one. For it provides, in the first place, that the ownership of land to the yearly value of £100 shall give a qualification, and, in the second place, it declares that the factor of any proprietor or proprietors infeft in lands of the yearly value of £800 ‘shall be qualified to act as a commissioner of supply in the absence of such proprietor or proprietors.’
By this Act the factor does not act as the mandatory of anyone in the proper sense of the word, but is himself a commissioner of supply. He is entitled to act as such in respect of the qualification which the Act gives. He holds a qualification as good as any other commissioner. The question then seems to be, whether a commissioner who holds more than one qualification can give more than one vote? and the Lord Ordinary answers it in the negative. No person can be more than one commissioner of supply, however numerous his qualifications may be.”
The pursuers reclaimed.
Authority— Robertson v. Murdoch, Feb. 23, 1830, 8 Shaw 587.
At advising—
One of the qualifications of commissioners of supply—that created by the recent Act—is being factor of a proprietor infeft in lands of the yearly value of £800 or upwards. That is the qualification, and so long as the factory exists the party holding it is, in the absence of the proprietor, entitled to act as a commissioner of supply as fully and independently as any other commissioner however qualified. He does not attend meetings of commissioners or act as a mandatory or proxy. The Act contains nothing to that effect. He is a commissioner of supply, and entitled to act as such so long as he holds the requisite qualification. The proprietor for whom he is factor cannot control him or interfere with him at all, except, it may be, by recalling his factory.
In regard to the question whether the factor so long as he holds his qualification is entitled to a plurality of votes, that is to say, one in virtue of every factory he may happen to hold, and one also in respect of property belonging to himself, I am very clearly of opinion that he is not. He must in this respect conform himself to what I have always understood to be the general, if not the invariable, practice. And independently of the practice I am satisfied that on principle, and having regard to the nature of his office, and the duties he has to discharge—these being partly judicial as well as administrative—a plurality of votes is quite inadmissible. Were it otherwise, the same individual might argue and vote in one way or direction for himself, and in another way for the proprietor whose qualifying factory he might happen to hold, and that too in questions of a judicial nature. It is impossible, I think, consistently with reason and propriety, to hold that a commissioner of supply has any power warranting such a course of proceeding.
The point is, whether a commissioner of supply having several qualifications may vote in right of each? Mr Edmond, who is qualified to vote in his own right, claims to vote also as factor for Mr Shireffs Gordon and Mr Craigie. Now, I take it as quite clear from the statutory construction of the office of commissioner of supply that when a person, whether with one or with ten qualifications, is placed on the commission, he is simply entitled to one vote. Other cases might be put by way of illustration. Suppose, for instance, that Mr Edmond was the heir-apparent to another property worth £400 per annum, this would not give him a second vote. The simple question is, whether or not a person is entitled to vote as a commissioner of supply? and if this question be answered in the affirmative, it is of no consequence whether his qualification be represented three or four or a hundred times over; he can be placed only once on the roll as a commissioner, and can exercise only one vote. Now, there is here no question whether Mr Edmond is or is not a commissioner of supply. He no doubt is so; but the fact of his being entered three times can give him no right to vote three times. It would be a possible case that a man possessed of three property qualifications should sell the subject of one of them, yet his right to vote as a commissioner would be neither more nor less than it was before. The analogies from voting by shareholders of a company or by creditors of a bankrupt seem to fail entirely, for in the case before us the vote is not according to the value of the subject, but is simply a question of qualification. The case of voting for a member of Parliament is much more in point.
On the whole matter, therefore, I concur with your Lordships in affirming the judgment of the Lord Ordinary.
The Court adhered.
Counsel for Pursuers (Reclaimers)— Balfour— Keir. Agents— Morton, Neilson, & Smart, W.S.
Counsel for Defenders (Respondents)— Kinnear— Begg. Agents— Baxter & Burnett, W.S.