Scottish Court of Session Decisions

On 23rd April 1910 A. C. Buchanan, Solicitor, Stirling, clerk to the Licensing Court of the said county, David Wilson of Carbeth, Killearn, chairman of said Court, and others, being the remanent members thereof, presented a petition to the First Division, in which they craved the Court, in virtue of its nobile officium, to appoint the said Licensing Court to meet in Stirling on 5th May 1910, or such other date as the Court might deem proper, for the purpose of carrying through the business falling to be transacted at a general half-yearly meeting of such Court. The petition stated that under the Licensing (Scotland) Act 1903 the Licensing Court for the county of Stirling consisted of fourteen members — seven members being a quorum; that in terms of the Act a half-yearly meeting of the Court fell to be held on 19th April 1910; that notices were duly issued to the members calling the meeting; that only four members attended; that as it was found impossible to constitute the Court on the statutory date the Court could not be held; that no provision was made by the said statute for such a contingency; that the existing certificates for the sale of exciseable liquor within the county would expire on 28th May 1910; and that unless new certificates were granted prior to that date by a competently convened Licensing Court a deadlock would result in the licensing administration of the county.

The petition further stated—“By section 17 of the said Licensing (Scotland) Act 1903, it is provided that ‘The clerk to the Licensing Court shall, at least ten days before the general meeting of such Court, make out and advertise at least twice in one or more newspapers, printed or generally circulated in the district, a complete list in the form, or as nearly as may be in the form, of the fifth schedule’ annexed to the Act, setting forth certain particulars of all applications for new certificates, or for certificates to new tenants, and for renewal of certificates transferred during the currency of the previous half-year. Advertisement was duly made, as required by said section, ten days before the Court fixed for 19th April; and the petitioners submit that in the circumstances no further advertisement is called for under this section in the event of your Lordships seeing fit to appoint a meeting of the Licensing Court to be held as craved in the prayer of this petition.”

On 23rd April 1910 the petitioners moved the Lord Ordinary on the Bills ( Lord Dundas) to dispose of the application on the ground of its urgency, and argued—The case was clearly one for the exercise of the equitable jurisdiction of the Court— Banff County Road Trustees, Petitioners, October 21, 1881, 9 R. 20, 19 S.L.R. 8. It was in his Lordship's power to dispose of the application — Magistrates of Pollokshaws, Petitioners, September 26, 1882, 20 S.L.R. 19; Edgar v. Fisher's Trustees, November 10, 1893, 21 R. 59, 31 S.L.R. 76; Beveridge's Forms of Process (1826), i, 229, and cases there cited.

His Lordship held that in the absence of averments showing the absolute impossibility of timeously obtaining from the Court the authority craved, the Lord Ordinary on the Bills could not, even in vacation, competently exercise the nobile officium of the Court.

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The case was again mentioned to the Lord Ordinary on 27th April, when his Lordship allowed the petition to be amended by the substitution of the words “such early day” for the words Thursday, 5th May, or such other date,” and on an undertaking being given that the question of competency would be brought under the notice of the Court at its meeting, granted, quantum valeat, an order for intimation and service in the following terms:—“Appoints intimation of the petition as amended to be made on the walls and in the minute-book in common form, and to be served on the county clerk of the county of Stirling, and appoints all parties having interest to lodge answers, if so advised, within six days after such intimation and service; further, appoints notice of the petition to be advertised once in each of the Stirling Journal and Falkirk Herald newspapers.”

On the petition appearing in the Single Bills of the First Division on 12th May counsel stated what had taken place in the Bill Chamber, and moved the Court to grant the prayer of the petition without further procedure.

The opinion of the Court ( Lord Kinnear, Lord Johnston, and Lord Skerrington) was delivered by