Scottish Court of Session Decisions

The Representation of the People Act 1884 (48 Vict. cap. 3), section 5, enacts—“Every man occupying any land or tenement in a county or burgh in the United Kingdom of a clear yearly value of not less than ten pounds shall be entitled to be registered as a voter, and when registered to vote at an election for such county or burgh in respect of such occupation, subject to the like conditions respectively as a man is at the passing of this Act entitled to be registered as a voter and to vote at an election for such county in respect of the county occupation franchise, and at an election for such

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burgh in respect of the burgh occupation franchise.” Section 7 (6)—“The expression ‘county occupation franchise means’ … as respects Scotland, the franchise enacted by the sixth section of the Representation of the People (Scotland) Act 1868.”

The Representation of the People (Scotland) Act 1868 (31 and 32 Vict. cap. 48), section 6, enacts—“Every man shall be entitled to be registered as a voter, and when registered to vote at elections for a member to serve in Parliament for a county, who, when the Sheriff proceeds to consider his right to be inserted or retained in the register of voters, is qualified as follows—that is to say (1) … (2) Is and has been during the twelve calendar months immediately preceding the last day of July in the actual personal occupancy as tenant of lands and heritages within the county of the annual value of fourteen pounds or upwards, as appearing on the valuation roll for such county …”

This was an appeal, by way of stated case, from a Registration Court for the county of Dumfries, held on 6th October 1905, in which James Walter Whitelaw, Solicitor, Dumfries, acting on behalf of Richard Jones, quarry foreman, Locharbriggs, was appellant, and James Hairstens M'Gowan, Ellangowan, Dumfries, was respondent. At the said Court M'Gowan had objected to Jones' name being retained on the list of voters, which objection had been sustained.

The facts of the case as stated by the Sheriff-Substitute ( campion) were as follows—“That Richard Jones had for the requisite period been tenant of a dwelling-house at Locharbriggs; that the subjects were entered in the valuation roll as of the yearly value of £13; that the said Richard Jones was in actual personal occupation of the said dwelling-house up to September 1904, when he left this country for Greece in order to fulfil a year's engagement there; as quarry-manager; that this engagement being completed he returned to Locharbriggs on 8th October 1905, and again took up residence there; that during his absence from this country the foresaid house has been occupied by his wife, and that the furniture therein is his property. I sustained the objection on the ground that Richard Jones had been absent from the foresaid dwelling-house during the greater part of the qualifying period, and that his absence having been rendered necessary by his business engagement before referred to interrupted the continuity of his occupation of said house, and so disqualified him.”

The question of law for the decision of the Court was—“Whether in the circumstances stated Richard Jones is entitled to be enrolled under the occupation franchise in terms of section 5 of the Representation of the People Act 1884 in respect of said dwelling-house.”

Argued for the appellant—The requirement of the statute as to “actual personal occupancy” did not involve the necessity of personal residence— Wetherhed v. Moffat, November 8, 1878, 6 R. 20. Occupation by wife and family was quite sufficient, provided the absence as here was merely temporary— Manson v. Sinclair, 19th December 1808, 7 Macph. 329, 6 S.L.R. 49. The Sheriff-Substitute had dealt with this case as if it were one of household qualification and involved the inquiry whether the claimant was an “inhabitant-occupier.” In the same way as a stable might be occupied by horses or a woodyard by wood for the purposes of the Act, a house might be occupied by a wife and family— Lunan v. Allan, November 13, 1880, 8 R. 13, 1 S.L.R. 69; Johnston v. Buchanan, 6th November 1879, 7 R. 7, 17 S.L.R. 163; Lynn v. Henderson, November 27, 1893, 1 S.L.T. 342.

Argued for the respondent—Personal residence was necessary to give a qualification, otherwise any number of votes might be secured by one person in different constituencies. The absence of the claimant was not voluntary. He was under a legal obligation to remain away for a whole year— Stewart v. M'Fadzean, December 20, 1890, 18 R. 349, 28 S.L.R. 196; Rintoul v. Falconer, December 6, 1898, 1 F. 207, 30 S.L.R. 185. Civil possession was not enough, but that was all that Jones had in this case— Allan v. Smith, November 5, 1879, 7 R. 6, 17 S.L.R, 158.