Scottish Court of Session Decisions

The Edinburgh Southern Cemetery Company, Limited, incorporated under the Companies Acts 1908 to 1917, presented a petition for confirmation of alterations in the form of its constitution and of its objects as effected by a special resolution in terms of the Companies (Consolidation) Act 1908, sections 9 and 264.

The petition stated, inter alia—“1. The constitution of the company consists of a contract of copartnership dated on or about 12th February 1845, with various resolutions,

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altering and adding to the same, passed at meetings of the partners held prior to the aforesaid date of incorporation. 2. That by article 2 of the said contract of copartnership it is provided ‘That the object of this company shall be to enclose and lay out the ground acquired from Sir Thomas Dick Lauder of Grange, Baronet, for behoof of the company, extending to ten acres imperial measure’ [and bounded as therein described] ‘being part of the estate of Grange near Edinburgh, and also if thought expedient … to feu or purchase additional ground, properly situated, likewise in the neighbourhood of the city of Edinburgh; to enclose and lay out the ground already acquired and such as may be hereafter acquired for behoof of the company in a superior and ornamental manner as a place or places for interment; to dispose of said ground for burial places, tombs, or graves to individuals or families at proper and moderate prices; and to provide such chapels and vaults or other buildings, and everything which shall be deemed by the directors requisite and proper for a burial ground or cemetery.’ … 5. That the constitution of the company as embodied in the said contract of copartnership and the numerous resolutions amending and varying its original provisions is cumbrous and inconvenient besides being out of date and unsatisfactory in many ways. The company therefore desires to substitute therefor a memorandum and articles of association in modern form. 6. That on 19th February and 12th March 1923 accordingly at extraordinary general meetings of the shareholders of the company held at the registered office the following special resolution was unanimously passed and confirmed, namely—‘That the memorandum and articles of association submitted to this meeting, of which a printed copy has been docqueted and signed by the chairman hereof for the purpose of identification, be and the same are hereby approved, and that in accordance with the provisions of the Companies (Consolidation) Act 1908, and particularly sections 9 and 264 thereof, the form of the constitution of the company be altered by substituting the said memorandum (extending the objects of the company) and articles of association for the contract of copartnership of the company executed in 1845 with the alterations and amendments since made thereon, and that the directors be and hereby are authorised to present the appropriate petition to the Court of Session for confirmation of such alteration in the form of the constitution of the company.’ … 8. That the objects of the company as declared in the third clause of the said memorandum of association are as follows:—(1) To carry on business in or near the city of Edinburgh as owners of cemeteries or burial grounds and crematoriums, stone and marble cutters, masons, quarriers, and sculptors, florists, gardeners, and undertakers. … 9. That the objects of the company as set forth in said third clause of the proposed memorandum of association are calculated to enable the company to carry on its business more economically or more efficiently, and also to carry on any other allied business which under existing circumstances may conveniently or advantageously be combined with the main business of the company. Otherwise the objects as thus set forth substantially represent the objects contained in its original constitution and (apart from the powers set forth in such third clause being such as are usually found in modern memoranda) are declaratory of what the company is at present doing and is entitled to do, with or without express power, in its constitution. The company puts itself into the same position as other cemetery companies established prior to 1862 which have adopted a similar course.”

On 20th April 1923 the Lord Ordinary officiating on the Bills remitted to Sir George M. Paul, C.S., to inquire as to the facts and circumstances set forth in the petition, and as to the regularity of the proceedings, and to report.

On 30th May 1923 Sir George M. Paul reported, inter alia, that the facts and circumstances set forth in the petition were sufficiently and accurately stated, that the procedure had been regular, and that the proposed alterations might be confirmed.

When the petition came before the First Division counsel for the petitioners referred to John Walker & Sons, Limited, 1914 S.C. 280, 51 S.L.R. 246, and argued that unless the proposed alterations were absolutely beyond the constitution the decision of the shareholders ought to rule. All the businesses specified in the alterations were capable of being carried on along with that of a cemetery company.