Magistrates of Dundee - Lushingto - Rutherfurd v. John Mackenzie Lindsay - Spanki - Robertson [1831] UKHL 5_WS_152

UKHL
Magistrates of Dundee - Lushingto - Rutherfurd v. John Mackenzie Lindsay - Spanki - Robertson
[1831] UKHL 5_WS_152
l. The town council of a royal burgh being empowered by the set, in the event of the person elected Dean of Guild by the guildry not producing evidence of his qualification to hold the office, to elect a Dean of Guild themselves; but having, in respect the party elected by a majority of the guildry was disqualified, found that another candidate supported by an apparent minority was duly elected, and that the Votes for the other candidate, to whom no objection was stated at the meeting of guildry, were thrown away—Held (affirming the judgment of the Court of Session) that the Town Council had not exercised their powers under the set, and that the whole election was illegal, null and void.2. After an appeal had been entered against a judgment reducing an election of Magistrates, and the parties (as was alleged) came to an understanding, for political reasons, to allow it to be heard ex parte , found competent for a burgess, although not a member of Council, to be sisted and heard as respondent, but that a candidate as Member of Parliament was not so entitled.By the set of the royal burgh of Dundee, the election of the Dean of Guild and Councillor to the Guild, who are constituent members of the Town Council, is regulated as follows:—
“On the Wednesday immediately after the election of the provost and other office-bearers, the Guildry Incorporation shall meet at eleven o'clock in the forenoon, in the Guildhall, or such other place in Dundee as a general meeting of the guildry shall at any time fix, and, by the voice of a majority of the members present, elect a guild-brother, being a burgess, to be Dean of Guild for the year ensuing; and another guild-brother, being also a burgess, to be Councillor to the Guild also for the year ensuing. The Dean of Guild, and Councillor to the Guild, shall attend the first stated meeting of council after their election; and, before taking their seats in council, shall produce their several burgess and guildry tickets, as evidence of their being burgesses and guild-brothers, with an extract of the minute of their election, certified by the clerk of the guildry.”
A similar course of proceeding is prescribed for the convener and deacon of trades; and, with reference to this matter, the set declares, that “in case the Dean of Guild and Councillor to the Guild, and convener, or any of them, shall fail to appear in council on the day appointed for their taking their seats—or appearing, fail to produce the requisite

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Alexander Kay and William Lindsay, were put in nomination for the office of Dean of Guild at the meeting of guildry held on the 3d of October 1827 for the purpose of election. No objection was stated to Kay, as not being duly qualified to be elected; and on the roll being called there appeared for him 141 votes, and for Lindsay 128. A scrutiny of the votes was commenced, but abandoned; Kay was thereupon declared by the presiding Dean to be duly elected—was called in—took the chair—and presided at the election of the Guild Councillor; but a protest was taken for Lindsay, that he was the duly elected Dean. On the 8th October, at the first meeting of Council held thereafter, Kay appeared, presented an extract of the minutes of election, and claimed to be received as Dean of Guild for the ensuing year. To this it was objected, inter alia , that he was not qualified, as being a burgess only for his lifetime, and not for his heirs and successors,—which last description of burgess-ship was said to be necessary to qualify a party for office; and the Provost moved, “That the Council do find and declare that the said Alexander Kay has not produced; the requisite evidence of his qualification for the office in terms of the sett of the burgh, and therefore cannot be received by the Council as Dean of Guild;” and this motion was seconded by Mr. Anderson.Calman, Old Bailie and Councillor, moved, as an amendment “That the Council do find and declare that the said Alexander Kay has produced the requisite evidence of his qualification

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The question having been put, and the vote called, all the members present voted against the amendment, and in support of the Provost's motion, except Caiman and Gardener, who voted in support of the amendment, and against the Provost's motion; but two Merchant Councillors had left the meeting before the roll was called; and accordingly the Council, Calman and Gardener dissentient, found and declared in terms of the Provost's motion.Thereafter the Council, by a majority, found and declared, “That, in respect the Council have determined, and hereby determine and declare, that the said Alexander Kay is not legally qualified to hold the office of Dean of Guild, it is unnecessary to enter on any inquiry of the other objections.”After the Council had thus rejected Kay, Lindsay appeared, and, producing the minutes of the guildry meeting, claimed a seat in Council as Dean of Guild duly elected, as set forth in the said minute.Against Lindsay's claim two objections were made:
“1. That he had not been elected to the office of Dean of Guild by the guildry. 2. That, on the contrary, he had a minority of votes; but, independently of this, many of his voters were disqualified because they were members of one or more of the nine incorporated trades of Dundee, and did not produce evidence that they had renounced their political privileges as such.”
Thereon the Provost moved, “That the Council, having considered the claim of the said William Lindsay, the said extractminutes of the meeting of the guildry, and the evidence produced by the said William Lindsay of his being a burgess and guild-brother, and the whole proceedings above recorded, and also specially the objections stated by the said Alexander Kay above mentioned,—find, that the said William Lindsay has produced sufficient evidence of his being a burgess and guild-brother: find, that it appears from the said extract-minutes of the meeting of the guildry that the said William Lindsay and the said Alexander Kay were the only persons put in nomination for the office of Dean of Guild, and that there were votes which have not been objected to for each of them: find also, that the Council have already determined that the said Alexander Kay is not legally qualified to hold the office of

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Thereafter Lindsay was admitted and received by the Council as Dean of Guild for the ensuing year, and he accepted of his office, promised to be faithful, and took his seat in Council.At the same time John Morton (whose burgess ticket was alleged to be precisely similar to that of Kay) was admitted as Guild Councillor.Kay and Morton then presented a petition and complaint, the fee-fund dues of which were paid on the 7th December, and it was marked as boxed and lodged on the 8th. They prayed the Court to find that “the whole of the said annual election or pretended election is illegal, contrary to the sett, laws, and constitution of the said burgh, and the laws of the land, and absolutely null and void, and to reduce and set aside the same accordingly; or at least to find that the said pretended election of the said William Lindsay as Dean of Guild is illegal, contrary to the sett, laws, and constitution of the burgh, and the laws of the land, and absolutely null and void, and to reduce and set aside the same accordingly; and to find and declare that the complainer, Alexander Kay, was legally elected to the said office, and has the only legal and undoubted right and title to the same, and ought to have been received and admitted by the Town Council into their body as Dean of Guild accordingly; and to ordain the persons complained upon still to

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This they maintained on these grounds:—

“1, The complainer, Alexander Kay, was duly elected Dean of Guild by the guildry, and is now the only legal Dean, and as such ought to have been received by the Magistrates and Town Council, the objection taken against his qualification, that he was not a burgess, being groundless and totally unsupported by the sett, and contrary to the usage of the burgh.
2. Supposing the complainer not to have been duly elected by the guildry, or to have forfeited the office conferred upon him by that election, in consequence of the disqualification alleged against him, there was no legal election of Dean of Guild at all; for no notice having been given to the electors at the meeting for election, of the said pretended disqualification as existing against the complainer, there was no legal ground for holding the votes of the majority of the meeting as thrown away; and there being a majority of votes against Mr. William Lindsay, that gentleman was of course not elected Dean of Guild by the guildry; therefore the decision of the Council that he was so elected, with their consequent admission of him as a member of Council, Was contrary both to fact and law.3. If the complainer, who was the only person elected Dean of Guild by the guildry, did not produce to the Council sufficient evidence of his qualifications to hold that office, or otherwise forfeited his right to be received by the Council, then, Mr. Lindsay not having been elected by the guildry, the only course allowed by the sett for filling up the office was, that the Council should themselves, jure devoluto, have elected a Dean of Guild by an independent act of election of their own; and this not having been done, the necessary consequence would be, that no Dean of Guild has been legally elected at all.4. Supposing the objection taken against the qualification of the complainer, Mr. kay, to be well founded, the complainer, Mr Morton, whose qualification is liable to similar objection, has not been legally elected Councillor to the Guild, and the full and necessary number of the Council has not been filled up.5. If the election, either of the Dean of Guild or Councillor to the Guild, was contrary to law. the consequence must be, that the whole election of Magistrates and Councillors becomes null and falls to the ground.”

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Against the competency of this petition it was objected, that as the election of the Dean took place on the 3d October, and the petition had not been lodged till the 8th December, the statutory period of two months had elapsed; but the Court (31st May 1828), holding the admission of the Dean on the 8th October to be the last step of the election, found the complaint competent. *While this discussion was going on, the Council, at the election of 1828, cited Kay to attend and act as Dean of Guild; and on his failure they elected to the office, as in virtue of their jus devolutum, Jobson, who acted as Dean in the several parts of the election. In the meantime, the cause having been remitted to the Lord Ordinary for preparation, condescendences and answers were given in and revised. The parties differed widely on the facts necessary to determine the objections to the qualifications of the two candidates and the validity of the votes at the guildry meeting; but, at the request of the parties, the Lord Ordinary reported the cause, without however closing the record, lest it might be necessary to remit to the Jury Court. His Lordship added the subjoined note. †

Footnote

* 6 Shaw and Dunlop, No, 322.† The Lord Ordinary reports this case at the desire of both the parties. The complaint contains alternative conclusions; either, 1, To have it found that the whole election of the Magistrates and Council at Michaelmas 1827 was null and void, in respect that there was no legal election of the Dean of Guild completed in terms of the set; or, 2. To have it found that William Lindsay, the person received by the Council as Dean of Guild, was not duly elected; and that the complainer, Alexander Kay, was duly elected, and ought to have been admitted by the Council. The merits of the case depend partly on matters of fact, in which the averments of the parties are opposite, and partly on questions of law; and in some points the law and the fact are very much mixed together. 1. The first plea in law for the complainer, and the first part of the first counter plea for the respondents, depend on the facts regarding Mr. Kay's situation as a burgess and as a guild-brother, on the construction of the set, on the usage of the burgh in regard to the admission of burgesses and guild-brethren, and on the validity of the votes given at the election meeting. Though there may be a good deal of law involved in this part of the case, it would probably appear to be fit for trial in the Jury Court if not superseded by other points. 2. The second plea in law for the complainer is, that, supposing him not to have been qualified to be elected, it was incompetent for the Council to declare his competitor duly elected, in respect that no notice of the objection to his qualification was given at the election meeting, whereby the votes given for him were not thrown away; and the third plea on the same supposition is, that the Council could only make an independent election of a qualifie I person by their own powers, jure devoluto, and that by the course which they have followed no Dean was elected. These pleas seem to depend on questions of pure law, assuming the facts as against the complainer; and they are met by the second part of the respondent's first plea. 3. The last or fifth

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After a hearing in presence, the Court, on the 9th March 1830, pronounced this interlocutor:—
“In respect that the election of Alexander Kay as Dean of Guild of the burgh of Dundee, for the year ending the 8th of October 1827, was not duly completed and declared by the Council in terms of the set of the burgh, and that William Lindsay was not duly elected Dean of Guild in terms of the set, and that the number of the council, at the close of the annual election complained of was thereby incomplete, therefore find the whole election of Magistrates and Council of the burgh of Dundee for the said year illegal, null, and void; and decern and declare accordingly.” *
On the 11th, the Court appointed interim Managers † ; and against these judgments the Magistrates, on the 23d, entered an Appeal, but they allowed it to fall by not lodging their case in due time. They then, on the 24th of June, presented a petition to the King in Council, setting forth that the burgh had been disfranchised, and praying for a royal warrant containing a new set of political constitution for the burgh. A dissolution of Parliament being expected, two candidates announced themselves, the Hon. Donald Ogilvie and the Hon. J. S. Wortley, for the representation of the district of Burghs of which Dundee formed a part, and in consequence a

Footnote

plea in law for the complainer, that if no Dean of Guild was lawfully chosen there was no legal election, would, if his second and third pleas were also sustained, support the first conclusion of the complaint, 4. The fourth plea in law for the complainer relates to the alleged disqualification of Mr. Lindsay, the person declared to be duly elected; and this involves a case of fact, construction, and usage which would probably require trial; but, 5. The respondents, in a third branch of their first plea in law, maintain, that even though they erred in judgment the proceeding was judicial, and, though subject to review, would not infer a nullity in the whole election. This is a point of law which, if sustained, would, on the supposition made, introduce the second alternative conclusion of the complaint; but it probably would not be decided unless the facts were either admitted or ascertained by trial. 6. But the respondents, in their second plea in law, further maintain, that, supposing neither Mr Kay nor Mr. Lindsay to have been legally elected in 1827, a Dean of Guild was lawfully elected by the Council, in virtue of their own powers, in 1828. This involves a question of law as to the effect of the proceeding referred to, to prevent the consequences of any error in the election of 1827. In this state of the case it has been thought proper to report the cause, rather than at once to send it to the Jury Court; and as it has been found inconvenient in other cases to have a shut record where a remit to Jury trial may take place, the record, though fully made up and revised, has not been closed.* 8 Shaw and Dunlop, No. 338.†Ibid. No. 348.

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Footnote

* On opening the case, the appellants waived all objections to John M. Lindsay being let in as a respondent.

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Appellants .— 1. By the statute 7 Geo. II. c. 16. § 7. it is enacted, that it shall be competent to complain of any wrong “done at any annual election” “only within the space of eight weeks after such election is over;” and by the 16 Geo. II. c. 11. § 24. the period is declared to be “two calendar months after the annual election of the Magistrates and Councillors.” In Dundee the election commenced on the 2d of October 1827, by choosing nineteen members of the Town Council, and on the 3d it was concluded by the Dean of Guild and a Councillor being on that day elected so as to make up the complete number of the Town Council; the election therefore terminated on that day; and although it is true that a subsequent meeting was held on the 8th to receive the Dean of Guild and Councillor, yet this was not an act of election, but a judicial proceeding; but as the petition and complaint were not lodged till the 8th of December, and the statutory period had expired on the 3d, it was incompetent, and consequently the judgments complained of unwarranted.2. The original complainer, Kay, was not qualified to hold the office of Dean of Guild, and those who voted for him threw away their votes. It was not necessary to state any objection to his qualification; the electors were bound to know whether he was qualified or not before giving their votes. Although this matter goes to the foundation of the case, and the appellants offered proof that Kay was not qualified, the Court below did not allow such evidence to be taken.Independent of this, his competitor Lindsay had the majority of legal votes. On this point also the appellants were always ready to join issue; and as the leaning of the court ought to be against disfranchisement, they ought to have been permitted to have had this matter investigated.At all events, as both Kay and Lindsay were cited to appear at the election of 1828, and they failed to attend, the appellants were entitled, in virtue of their jus devolutum, to make choice of a Dean of Guild; and as that election was not complained of, and was regular, the burgh ought not to have been disfranchised.Respondent (Lindsay).—1. The proceedings on the 2d and 3d of October were merely preliminary or initiatory steps towards the election of the Magistrates and Council, and that election was not complete till the 8th of October. The evil complained

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2. No objection was stated to Kay as a qualified person at the time of the election; and it is not denied that he was, at least to certain effects, a burgess and member of the guild. By allowing him to be put in nomination without objection one of two consequences follow, either that all objection was waived, or that no valid election has taken place. In either case the complaint is well founded. Although a scrutiny was competent on the occasion of the election by the guild, yet so soon as the election was over it was incompetent, and cannot now be entered upon. Besides, a scrutiny was begun, but abandoned, and Kay regularly installed into his office.If the election of 1827 was illegal, then no subsequent election could, without the intervention of a royal warrant, be valid; and, besides, the general rule of law is, pendente lite nihil innovandum est.Lord Chancellor .—My Lords, when this case was opening, I entertained, for a considerable time, some doubt upon one point, as my noble and learned friend did on another. I have since, and I believe my noble and learned friend concurs in that opinion, satisfied myself that those doubts, grounded on the words of the act of parliament, and the terms of the 6th article of the sett, with the proceedings thereupon, were not well founded, and that the Court below has come to a right decision on that point as well as on the other. Two questions are brought into discussion by this appeal. One is the question of limitation. Whether or not the statutory period of two months had elapsed before the petition and complaint (which summary mode of proceeding gave rise to the present appeal) was presented? The other, whether or not, admitting the petition and complaint to have been duly prosecuted, and within the statutory time, the Court came to a sound conclusion on the merits of the case? The first of these questions, if decided in favour of this appeal, would render the other wholly immaterial. The second question only becomes material in the event of the first being given against the appellants.According to the view I take of this case, the second question becomes material, and is raised before your Lordships. The first question depends on another, namely, what shall be taken to be the

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I am also of opinion that the Court below was right on this question. The thing complained of,—brought before the Court of Session,—decided on by the Court,—and brought before us by appeal,—is the thing which formed the subject of the petition and complaint; consequently, what is before us to decide on appeal is and can be none other than that which took place on the 8th of October,—the decision of council setting aside Kay's election, which I do not complain of, and putting Lindsay in his place, which I do complain of. Now, what was the Court of Session to do with this point? Were they to maintain,—“True it is, Lindsay, having the minority, beat Kay, who had the majority; because Lindsay had a qualification which was never brought in question, and Kay had no qualification—which objection was not taken at the time;—but then, if you had done something else, and had chosen either to scrutinize the majority of Kay,—in which case you might have found Lindsay had the majority,—or had taken advantage of your jus devolutum, and elected him yourselves, he would have been duly elected, and therefore, quacunque via data, Lindsay is to be sustained as duly elected; and although you, the council, came to that conclusion in a wrong and absurd and inconsistent manner, yet as you have come, on the whole, to a right conclusion, we will not listen to this petition and complaint.” That is the argument; but it is wrong, fundamentally wrong, because the question was, whether or not the council had done right in rejecting Kay, who had the majority of thirteen; and not only rejecting him for want of qualification, but putting Lindsay in his place, who had the minority,—there having been no notice given at the election to make the votes thrown away which were given for Kay? That is what was before the Court of Session; but the scrutiny was not before the Court. The Court had no right to say, “If you had scrutinized, you would have found Lindsay had the majority;” for non constat he would be found to have the majority. But then is it meant to be said, “the Court ought to have sent the matter back to the council, and let them go into the scrutiny?” My Lords, it has been clearly and demonstratively shewn to you that they could not have sent it back, because the council cannot scrutinize. You might as well send back to the crown office to scrutinize the return of a knight of the shire. The scrutiny ought to be, and can only be, in the guildry, which is the elective body, and before whom Lindsay ought to have taken his objections to Kay's majority; and if he had chosen then to object, and to demand a scrutiny, they were bound to have given it him, and they were the persons to have expedited the proceeding; but

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Then last of all shall it be said that jus devolutum occurred? My answer is, if it had occurred, and if Lindsay had been elected by the council in virtue of any jus devolutum, that would have been a complete answer to the petition and complaint, as far as the disfranchisement of the borough goes. It would then have been a complete election by the jus devolutum; but I deny that it occurred here. The jus devolutum occurs under the sixth article of the sett (which is the governing part of the charter here), either if they shall fail to appear on the day appointed, or, appearing, shall fail to produce the requisite evidence of their several elections, and of their qualifications. They did produce the evidence of the election,

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Upon these grounds, my Lords, I have a clear opinion respecting this case. I think I have listened attentively to the argument; I am sure I have listened impartially. It is said to be a political question. I know of no politics in this place. But partiality, as between the conflicting interests, I can have none. Towards one party, supposed to be interested in the question, I stood in the relation of counsel to a client; towards the other party I stand in the relation of a very old friend. Thus situated, if I had felt any doubt upon the subject, I should have declined troubling your Lordships, as not a safe adviser; or, at all events, should have declined giving my opinion until I had had the opportunity of further consultation on the question. But as I entertain no doubt whatever on any of the points, I feel myself bound to give your Lordships the best of my advice; and I have no hesitation in moving that the interlocutor be affirmed.Lord Wynford .—After the very elaborate judgment which has just been pronounced, it is hardly necessary for me, my Lords, to add any thing. The only one doubt that I ever entertained on this case was, whether the Court of Session ought not to have directed an inquiry as to whether Mr. Lindsay had the majority of legal

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The House of Lords ordered and adjudged, That the interlocutors complained of be affirmed.Appellants' Authorities .—Henderson, July 3, 1821; 1 Shaw & Dun. No. 125.; Glass, Feb. 28, 1754 (1875); Pratt, June 9, 1824; 3 Shaw & Dun. No. 85.; Learmouth, June 1, 1826; 4 Shaw & Dun. No. 401; Kidd on Corporations, p.15—20; Perth, Feb. 11, 1741 ( Elchies v. Burgh Royal , No. 16.) Respondent's Authorities .—Wight, 337; Perth, 16 Feb. 1780; Connell, 385.Solicitors: Richardson and Connell— Moncrieff, Webster, and Thomson,—Solicitors.