Scottish Court of Session Decisions

The petitioners in this case were Peter Keir, provost of the burgh of Musselburgh; J. T. Riddock and William Brown, two of the bailies of the said burgh; and A. D. Macfarlane, the town-clerk.

At the election of councillors which fell to take place on 1st November 1881, Provost Keir and Bailie Riddock were included in the third of the council who had been longest in office, and fell to go out of office by rotation as provided by the statutes regulating the election of burgh councillors (3 and 4 Will. IV., cap. 77, sec. 12). Under the statutes regulating municipal elections, and particularly under the 3 and 4 Will. IV., cap. 76, secs. 8 and 10, Bailie Meikle, the remaining bailie, as next senior magistrate, was appointed to act as returning-officer on the day of election. Bailie Meikle, however, declined to act. On 24th October current he addressed the following letter to the petitioner Macfarlane:—“The Hollies, Musselburgh, Oct. 24th, 1881.—Dear Sir,—Looking at the present aspect of affairs, I think it would be injudicious on my part to act in the capacity of returning-officer at the ensuing election. You will therefore be pleased to intimate to the Council my declinature to so act, so that steps may be taken to provide against the contingency.—Yours truly (Signed) A. Meikle.”

While 15 and 16 Vict., cap. 32, sec. 5, provided for the case of all magistrates of a burgh going out of office, there was no provision in any of the statutes regulating the election of burgh councils for the case of the senior magistrate remaining in office and refusing to discharge the duties thereby devolving upon him. In these circumstances the petitioners appealed to the nobile officium of the Court, and prayed the Court “to authorise and appoint the said William Brown [who was the magistrate next in seniority to Bailie Meikle] to act as returning-officer at the said election of councillors of the burgh of Musselburgh on first November 1881, to superintend the poll, and otherwise conduct and manage the said election in the same way and with the same powers, rights, and functions as if he were senior magistrate; and further, to find that the expenses incurred in presenting this application, and consequent thereto, shall form a good and lawful charge against the funds of the said burgh; or to do further or otherwise in the premises as to your Lordships shall seem proper.”

It was stated by counsel that Bailie Meikle declined to act as returning-officer because he was taking an active part in promoting the return of particular candidates.

At advising—