Scottish Court of Session Decisions

This was a petition presented by the Incorporation of Tailors in Glasgow under section 3 of the Burgh Trading Act 1846 for the sanction of the Court to certain additional bye-laws. The petition was opposed by the Trades House of Glasgow, and by certain members of the Tailors Incorporation, upon the ground (1) that the Trades House of Glasgow had not approved of the proposed bye-laws, and (2) that on the merits they ought not to be sanctioned.

By the Burgh Trading Act 1846 (9 and 10 Vict. cap. 17), which was passed for the abolition of the exclusive privilege of trading in burghs in Scotland, it was enacted—Section 1—“That from and after the passing of this Act all such exclusive privileges and rights shall cease, and it shall be lawful for any person to carry on or deal in merchandise, and to carry on or exercise any trade or handicraft in any burgh and elsewhere in Scotland, without being a burgess of such burgh, or a guild brother, or a member of any guild, craft, or incorporation.” Section 2—“That notwithstanding the abolition of the said exclusive privileges and rights, all such incorporations as aforesaid shall retain their corporate character, and shall continue to be incorporations with the same names and titles as heretofore, and nothing herein contained shall anywise affect the rights and privileges of such incorporations, or of the office-bearers or members thereof,” except as regards the abolition of the said exclusive privileges. Section 3—“And whereas the revenues of such incorporations as aforesaid may in some instances be affected, and the number

Page: 110↓

of the members of such incorporations may in some instances diminish by reason of the abolition of the said exclusive privileges and rights, and it is expedient that provision should be made for facilitating arrangements suitable to such occurrences, be it therefore enacted that it shall be lawful for every such incorporation from time to time to make all bye-laws, regulations, and resolutions relative to the management and application of its funds and property, and relative to the qualification and admission of members in reference to its altered circumstances under this Act, as may be considered expedient, and to apply to the Court of Session by summary petition for the sanction of the said Court to such bye-laws, regulations, or resolutions; and the said Court, after due intimation of such application, shall determine upon the same, and upon any objections that may be made thereto by parties having interest, and shall interpone the sanction of the said Court to such bye-laws, regulations, or resolutions, or disallow the same, in whole or in part, or make thereon such alterations, or adject thereto such conditions or qualifications as the said Court may think fit, and generally shall pronounce such order in the whole matter as may to the said Court seem just and expedient; and such bye-laws, regulations, or resolutions, subject to such alterations and conditions as aforesaid, shall be, when the sanction of the said Court shall have been interponed thereto, valid and effectual and binding on such incorporations: Provided always, that nothing herein contained shall affect the validity of any bye-laws, regulations, or resolutions that may be made by any such incorporation without the sanction of the said Court, which it would have been heretofore competent for such incorporation to have made of its own authority or without such sanction.”

The petitioners stated as follows—“The Incorporation of Tailors in Glasgow was incorporated under a charter or seal of cause granted by the Provost, Bailies, and Council of the city of Glasgow, with concurrence of the Archbishop, dated 3rd February 1546. This was confirmed by a charter granted by Queen Mary, which is dated at Stirling 16th April 1556, and on the 11th May 1569 another charter was granted by the city of Glasgow, conferring further powers and making further regulations for the weal of the craft and for its poor.… The affairs of the Incorporation are managed by a body of its members annually elected, and called the Master Court, which consists of a deacon, collector, the late deacon and collector, two members nominated by the deacon from the operative members of the Incorporation, who are called deacon's masters, and nine other members chosen by the Incorporation, who are called trades' masters, of whom two-thirds must be operative members. This Incorporation is one of the fourteen incorporated trades of the city of Glasgow. These trades elect members to the Trades House of Glasgow, constituted by the Letter of Guildry of February 1605, ratified and confirmed, inter alia, by an Act of the Parliament of Scotland dated 11th September 1672. The Incorporation of Tailors send six members to the Trades' House, being the highest number competent for any incorporation to send.… This Incorporation since 1846 has remained more closely connected with its trade, it is believed, than any of the other incorporations which compose the Trades' House. In July 1878 the Incorporation presented a petition to your Lordships under the above recited Act for sanction to some new bye-laws. After certain procedure, including a report by the Registrar of Friendly Societies, and an interim advising by your Lordships on 11th July 1879, these new bye-laws as amended were approved by your Lordships in July 1880.… The object of the present petition is to obtain the sanction of the Court to the new bye-laws which are printed in the appendix hereto, and which were resolved upon at a meeting of the incorporation held on 10th April 1901. The effect of these proposed new bye-laws of the Incorporation is generally—(1) To require increased freedom-fines or entry-moneys as a condition of obtaining any membership interest in the considerable funds accumulated by the Incorporation for over three centuries under its charters and now administered for the expenditure of the Incorporation as by use and wont, and for the benefit of decayed members, their widows and daughters; (2) To enforce the principle and letter of its charters that this is a Glasgow incorporation intended for those connected by residence or business with the city of Glasgow; (3) To regulate equitably the claims of intrants by the near hand (i.e., sons and sons-in-law of members) and those of intrants by the far hand or strangers, and to abolish certain distinctions between members; (4) To secure due competency in intrants by trade essays; (5) To protect the funds and maintain the careful management of the Incorporation by recognising the discretion of the Master Court in deciding on the personal eligibility for admission of every applicant.”

The proposed new bye-laws included the following:—“3. That sons and sons-in-law of members who can make an essay and are carrying on the trade either as employer or as employee, and who must be connected with Glasgow by business or residence, shall pay at entry the sum of £7, 10s. 4. That the entry-money of all other sons and sons-in-law hereafter applying for admission, and who must be connected with the City of Glasgow by business or residence, shall be £15. 9. That strangers who are not carrying on the trade, but who have a connection with the city by business, shall pay an entry-money of £100. 14. That the foregoing bye-laws shall be the only bye-laws of the Incorporation regulating the admission of members and their qualifications, entry-money, and other payments, and that all other bye-laws so far as inconsistent therewith are repealed and departed from, but always without prejudice to the

Page: 111↓

discretion of the Master Court in deciding on the personal eligibility for admission of every applicant.”

The result of the additional bye-laws was, inter alia, that while under the bye-laws in force at the date of the petition sons and sons-in-law of members were entitled to be admitted to the corporation as a matter of course, and there was no residential qualification needed for any applicant, there would now be a discretionary power in the Master Court to reject all applicants, including sons and sons-in-law, as unsuitable, and it would be an essential condition of admission in all cases that the applicant should be connected with Glasgow “by business or residence.”

In the answers lodged by the Trades House of Glasgow and by the opposing members of the Incorporation of Tailors—32 out of 305 members—the respondents averred that the Letter of Guildry (referred to in petition) created a federal union of the fourteen incorporated trades by mutual consent, and that that letter was a decree-arbitral pronounced by oversmen duly appointed following upon a reference between the fourteen incorporated trades as forming the whole body of the Trades Rank, and the whole body of the Merchant Rank, and that since that date every person desiring to be a member of one of the incorporated trades must be also a guild brother. They maintained that it was necessary under section 40 of the Letter of Guildry as interpreted by usage to obtain the sanction of the Trades House to new bye-laws and alterations on existing bye-laws, even where they related exclusively to the internal affairs of the Corporation.

Section 40 provides as follows:—“The deacon-convener shall convene all the deacons of crafts and their assistants at such times as occasion shall require, and shall judge betwixt them and any of them in matters pertaining to the craftsand callings, and shall make acts and statutes for good order among them with advice of the rest of the deacons and their assistants, providing always that these Acts neither prejudice the common weal of this burgh, merchant rank, or their assistants, nor any privileges granted to any deacon of this burgh by their letter of deaconry granted to them, which acts shall be approven of by provosts, bailies, and council.”

The respondents averred that this right in the Trades House had been recognised and confirmed by the Incorporation of Tailors in a bye-law passed by them and ratified by the Trades House after the Act of 1846 had come into force, viz., on 28th July 1857, which stated—“Rights—The members of the incorporation have power to make bye-laws for the regulation of its affairs when confirmed by the Trades House.”

The respondents averred as regards the usage—“From the year 1672 (when the Letter of Guildry was ratified by Parliament) down to the present year, many examples could be given to show that all the incorporations have at different times laid new bye-laws or alterations on bye-laws before the House for confirmation, ratification, and enactment, and that upon these occasions the House has either enacted these bye-laws in the form presented to it, or has amended the same before enactment, or has refused to enact them altogether. From 25th November 1672 down to the present year no incorporation, on laying any bye-laws before the House for ratification, has ever declined to amend the same in the manner pointed out by the House, with the single exception of the Incorporation of Tailors, who on 23rd August 1900 declined to approve of amendments suggested by the House on certain altered bye-laws” (these bye-laws being those now sought to be sanctioned by the Court).

The respondents did not ask for any proof of these last averments.

The respondents accordingly maintained that the petition was incompetent. They further averred that the proposals of the petitioners would be prejudicial to the Incorporation, to its members, to sons and sons-in-law of members, and to the Trades House, and that it would be an infringement of the contractual and patrimonial rights of the present members of the Incorporation and of the rights of the Trades House.

Argued for the petitioners— On Competency—The Trades House had no right to interfere with bye-laws relating exclusively to the internal affairs of the Incorporation, though they might have such right in the case of the relations of the Incorporation with the other members of the Trades House. Their consent was accordingly not a condition-preced ent to the confirmaiton of byelaws such as these. They related solely to the “management and application of its funds and property” and the “qualification and admission of members.” With such questions, in terms of section 3 of the Act of 1846, the Trades House had no concern. Nor did section 40 of the Letter of Guildry help the respondents, for it related only to the determination of questions between different incorporations, not to the regulation of the internal government of individual incorporations. The bye-law of 1857 did not involve the declaration that bye-laws not confirmed should not be valid, and the Incorporation did not thereby give up any right it had to make valid bye-laws. 2. On the Merits—The onus lay on the respondents to show, “as parties having interest,” that their objections to the new bye-laws on the merits were well founded. The objections to bye-laws 3, 4, and 9; viz., that they would introduce a new condition of admission, were not well founded, because the effect of them was not to introduce a new principle but merely to make clear what was the practice before, and to enforce what was the principle of the Incorporation, viz., that it was intended for persons connected by business or residence with Glasgow. As for the objection to 14, there was nothing unreasonable in the Master Court having power to consider the personal eligibility of even sons and sons-in-law. It was a matter entirely within the discretion of the Incorporation. In any case the respondents had no interest

Page: 112↓

to object, the interest alleged by them being of an altogether unsubstantial and remote character.

Argued for the respondents—(1) On Competency.—The Trades House had enacted bye-laws for all the incorporations, and till the present question was raised none of them had declined to amend proposed bye-laws in accordance with the suggestions of the Trades House. It possessed this power in virtue of section 40 of the Letter of Guildry as confirmed by the bye-law of 1857. The power to come to the Court for sanction under the Act of 1846 was subject to confirmation by the Trades House. (2) On the Merits.—By the new bye-laws 3, 4, and 9, the petitioners were introducing a new condition of admission which would diminish the revenues of the Incorporation by excluding persons now eligible. This would indirectly also affect the funds of the Trades House. These rules, coupled with the 14th new bye-law, would tend to make the Incorporation a much closer body than before, and would put it in the power of the Master Court to bring it to an end altogether by refusing to admit any new members. That was contrary to the policy of the Act of 1846 and subsequent decisions— Incorporation of Wrights, etc. of Leith, June 4, 1856, 18 D. 981. These Incorporations had practically become Friendly Societies, and it was not competent to apply their funds to different purposes from those which were originally intended, the members having rights ex contractu— Incorporation of Tailors in Glasgow v. Inland Revenue, May 26, 1887, 14 R. 729, 24 S.L.R. 516. The proposed bye-laws would be prejudicial to the vested rights of members of the Incorporation, and their sons and sons-in-law.

At advising—