Scottish Court of Session Decisions

All the magistrates of the burgh of Peebles fell to go out of office on 1st November 1881, the two bailies by rotation, and the provost as having been elected ad interim. They were all nominated for re-election, and as there were more candidates than vacancies, it was necessary that there should be a poll. By section 5 of 15 and 16 Vict. cap. 32, it is provided that “Whenever it shall so happen that the provost and magistrates of any of the said burghs shall all be included in the one-third of the council going out of office as aforesaid, they shall nevertheless retain and continue to exercise all the powers and functions of their several offices of provost and magistrates respectively until the election and coming into office of their successors, but they shall not after the period of their so going out of office be entitled to act or vote as councillors.” In ordinary circumstances the duty of acting as returning-officer would thus fall upon the provost, but in the present case, in respect that the provost was himself a candidate for re-election, and that the other magistrates were in the same position, this application was presented for the appointment of a returning-officer.

The petition was at the instance of the provost, bailies, and town-clerk, with the concurrence of the members of council, and suggested that the town-clerk should be nominated as returning-officer—See The Queen v. Owens, June 11, 1859, L.J. (N.S.) 28, 2 B. 316.

The Court, without deciding that it was illegal for a candidate to act as returning-officer, expressed opinions that in such circumstances it was proper that some one else should perform that duty, and appointed the Sheriff-Substitute of the county, in respect that under 3 and 4 Will. IV. cap. 76, sec. 10, the town-clerk had already the statutory duty put upon him of acting as polling-clerk at the election.