BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Urquhart v. Air and Others [1909] ScotLR 56 (20 November 1909) URL: http://www.bailii.org/scot/cases/ScotCS/1909/47SLR0056.html Cite as: [1909] ScotLR 56, [1909] SLR 56 |
||
[New search] [Printable PDF version] [Help]
Page: 56↓
One of three candidates for two vacancies in a town council died on the morning of the polling day, but the returning officer did not hear of the death till after the commencement of the poll. On hearing of it he stopped the poll and declared the two remaining candidates duly elected.
Held that as the Ballot Act 1872, sec. 1, only made provision in the event of a candidate dying before the commencement of the poll for countermanding notice of the poll, which could not be done after the poll had commenced, the returning officer was wrong in stopping the poll, that, accordingly, there had been an irregularity in the proceedings rendering the election abortive, and
Page: 57↓
that the vacancies fell to be filled up by the town council in one or other of the two ways ad interim prescribed by section 36 of the Town Councils (Scotland) Act 1900, viz., either (1) by the town council themselves after certain preliminaries, or (2) by a special election to be held as early as may be under the provisions of the Act.
The Town Councils (Scotland) Act 1900 (63 and 64 Vict. c. 49), enacts:—Sec. 36—“In case of any of the following events occurring between the issue of the notice mentioned in section 42” ( i.e., the notice of vacancies and dates of nomination and election) “and the first day of October in the following year, viz.—… ( e) The full number of councillors not being elected at any election, the full number failing to accept office, or any councillor being elected by more than one ward; ( f) Any election being abortive in consequence of any error or irregularity in the proceedings; ( g) A vacancy occurring from any cause other than those above stated, and other than retirement in ordinary rotation—the vacancy so occurring shall be filled up ad interim by the town council at a meeting of which the notices, stating that the matter is to be then dealt with, shall be sent out by the town clerk within three weeks of the occurrence of such event, and which shall be held not sooner than five days, and not later than ten days, from the date of such notice. In the event of the town clerk failing to call the said meeting, or in the event of the said meeting failing so to elect, it shall be in the power of the provost, or of any councillors forming among them one-third of the whole town council, at any time thereafter, to call a meeting for the same purpose and upon the same notice: Provided that any vacancy so occurring under heading ( e) or under heading ( f) aforesaid may, if the town council so resolve, be filled up ad interim as soon as may be by a special election by the electors, and such election shall be held as nearly as may be under the provisions of this Act; and the returning officer at such election shall, subject to the approval of the town council, fix the date of the election, and shall fix the dates for the issue of all necessary notices, and for lodging and withdrawing nomination papers, so that the intervals between such respective dates shall be the same as in the case of ordinary elections under this Act.” Sec. 49—“In the event of the number of persons nominated, and not subsequently withdrawn for election as councillors of any burgh exceeding the number of vacancies, the election shall be carried out by a poll which shall be taken on the first Tuesday of November, under and in conformity with the provisions of the Ballot Act 1872 (35 and 36 Vict. c. 33), the Elections Hours of Poll Act 1884 (47 and 48 Vict. c. 34), and any Acts extending and amending the same.”
Sec. 113—“Wherever it has, from a failure to observe any of the provisions of this Act or any other Act, or from any other cause, become impossible to proceed with the execution of this Act or any part thereof, or wherever difficulty or dubiety exists as to the procedure to be followed in any case, or where any case arises in connection with the election of councillors or magistrates not provided for by this Act, it shall be lawful for the town council, or any seven electors or householders within the burgh, or for the returning officer at any election, or the town clerk, to present a petition in manner provided by section 17 of the Burgh Police (Scotland) Act 1892, and the same procedure shall follow upon said petition, and the Court to whom the same is presented shall have the same powers as is provided by the said section in regard to applications presented thereunder.”
The Ballot Act 1872 (35 and 36 Vict. cap. 33), sec. 1, enacts—“If after the adjournment of an election by the returning officer for the purpose of taking a poll one of the candidates nominated shall die before the poll has commenced, the returning officer shall, upon being satisfied of the fact of such death, countermand notice of the poll, and all proceedings with reference to the election shall be commenced afresh in all respects as if the writ had been received by the returning officer on the day on which proof was given to him of such death. …”
On 4th November 1909 James Urquhart, Esquire, Lord Provost of Dundee, and as such returning officer at the municipal election in Dundee on 2nd November 1909, presented a petition under section 113 of the Town Councils (Scotland) Act 1900 (63 and 64 Vict. cap. 49), in which he craved the Court “to determine whether Mr M'Cabe and Mr Stewart” two of the candidates “were validly elected as town councillors; and further, in the event of the elections being valid, to direct how the vacancy caused by Mr Stewart's declining to accept office falls to be filled up, and in the event of the elections being held invalid, to direct how the two vacancies due to there having been no valid election fall to be filled up; to give directions, if necessary, for the said election or elections taking place; to find the petitioner entitled to the expenses of the petition, and to direct the same to be charged against the common good of the burgh.”
The petition stated—“4. The burgh of Dundee is a City and Royal Burgh. For municipal purposes it is divided into nine wards. From each of these wards three representatives are sent to the town council. In the ninth ward two vacancies had to be filled up by the election of two councillors by the electors in ordinary course in November 1909. For these two vacancies there were duly nominated, in terms of section 43 of the Town Councils (Scotland) Act 1900, three candidates, viz:—(1) Peter M'Cabe, 11 Laurel Bank, Dundee, baker; (2) Andrew Robertson, 334 Blackness Road, Dundee, superintendent; and (3) Robert Stewart, 19 Milnbank Road, Dundee, joiner. None of the said names was withdrawn, and after due and regular notice and procedure, arrangements were made for a poll
Page: 58↓
in the said ninth ward on Tuesday, 2nd November 1909, in accordance with section 49 of the said statute. 5. Early on the morning of Tuesday, 2nd November 1909, before the poll was opened, the said Andrew Robertson, one of the candidates, died. The remaining candidates equalled the number of vacancies. The statute makes no provision for such an event. The petitioner on obtaining authentic information of Mr Robertson's decease, stopped the poll, which had been opened for about two hours, this step being taken on the ground that there was, in substance, no longer any competition soluble by poll. In case Mr M'Cabe and Mr Stewart, as the surviving candidates, were legally entitled to be declared elected, the petitioner, as returning officer, on 3rd November 1909, declared them elected in terms of section 52 of the statute, but subject to such order as your Lordships might make on any petition to be presented in terms of section 113 of the statute. A corresponding intimation was made to each of the two candidates in terms of section 53 of the statute. On 4th November 1909 Mr M'Cabe intimated his acceptance of the office of councillor, while Mr Stewart intimated his declinature of the office, both in accordance with section 53 of the statute.”
Answers were lodged for David Air, merchant, Dundee, and others, being seven electors and householders in the Ninth Ward of the city, the number specified in section 113 of the Town Councils (Scotland) Act 1906, and section 17 of the Burgh Police (Scotland) Act 1892, as entitled to present a petition to the Court in cases where it has become impossible to proceed with the execution of the said Acts. They submitted that in the circumstances the rights of the electors would be best conserved by the Court ordering a new election.
Argued for petitioner—This was a casus improvisus, as the provisions of the Town Councils (Scotland) Act 1900 (63 and 64 Vict. cap. 49) did not apply. The petitioner was therefore entitled to present this application. Reference was made to section 17 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), to sections 36, 38, 45, 48 and 53 of the Town Councils (Scotland) Act 1900 ( cit. sup.), to section 1 of the Ballot Act (35 and 36, Vict. cap. 33), and to the case of Reg. v. Stewart, [1898] 1 QB 552.
Argued for respondents—There ought to be a new election. The returning officer was not justified in stopping the poll, and the proceedings were therefore irregular— Reg. v. Stewart ( supra); Rogers on Elections (8th ed.) vol. ii, p. 101. It was in the nobile officium of the Court to order a new election in such circumstances—Burgh Police (Scotland) Act 1892 ( cit. supra), sec. 17 (3); Brander and Others (Petitioners), July 18, 1890, 17 R. 1254, 27 S.L.R. 900.
At advising—
The last-mentioned Act, by rule 9 of the first schedule to the Act, directs the giving of notice of the poll in a case in which the election is contested; and the Act itself, section 1, provides that if after the adjournment of an election for the purpose of taking a poll, one of the candidates nominated shall die “before the poll has commenced, the returning officer shall, upon being satisfied of the fact of such death, countermand notice of the poll, and all the proceedings with reference to the election shall be commenced afresh,” &c. It is evident that this provision does not meet all the emergencies which may occur, as, for instance, that of the death occurring before the poll but the fact being unknown or not made public till it is over or the death occurring during the poll. As these very obvious possibilities are not provided for, I do not think that we are entitled to extend the statutory provision by implication or analogy, but are bound to apply it according to its terms. So doing I think that in the event of the death of a candidate before the poll has commenced all that is committed to the returning officer is that on being satisfied of the fact of the death he shall “countermand notice of the poll” and thereby stop the poll being commenced. He cannot countermand notice of the poll after it has commenced, and therefore if information of the death comes to him too late for countermand, the poll which has commenced must proceed, as the statute has not directed otherwise. What the result of such an election would be in the various circumstances which might occur we are not at present called on to determine.
In the present case the death of a candidate took place before the poll was opened, but was not known at least to the returning officer until after the poll was commenced. On being satisfied of the fact of death he stopped the poll then proceeding. For this I think that he had no warrant, and therefore that the election has become abortive in consequence of an error or irregularity in the proceedings — Town Councils Act 1900, sec. 36 ( f). There are therefore two vacancies in the ward in question, and the last-mentioned section provides for them being filled up in one or other of two ways ad interim, either (1) by the Town Council themselves after certain preliminaries, or (2) by a special election to be held as nearly as may be under the provisions of the Act.
I think that all we are called upon to determine is that Mr M'Cabe and Mr Stewart were not validly elected as town councillors of the City and Royal Burgh of Dundee, and that in respect of the statutory provision to which I have referred we are not called on to direct how the vacancies thus occasioned are to be filled up, the choice between the two alternative methods being by the Act of Parliament left to the Town Council.
Page: 59↓
The
The Court pronounced this interlocutor:—
“Find that Mr M'Cabe and Mr Stewart were not validly elected as town councillors, and that the two vacancies thus occurring fall under subsection ( f) of section 36 of the Town Councils (Scotland) Act 1900, and fall to be filled up in one or other of the methods prescribed in said section, and decern: Find no expenses due to or by any of the parties, and decern. …”
Counsel for Petitioner— Chree. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
Counsel for Respondents— D. Anderson. Agents— M'Neill & Sime, S.S.C,
