Monteith and Others v McGavin
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1838 |
| Date | 20 July 1838 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 478
FROM THE COURT OF SESSION.
[459] APPEAL fbom the court of session. ADAM MONTEITH and Others,-Appellants; ROBERT M'GAVIN,-Respondent [July 5, 9, 12, 20, 1838]. The lists of persons qualified to elect or be elected to municipal offices in the burghs of Scotland, must be made up on the 16th of September! in each year by the town-clerk of each burgh, in conformity with the sheriffs' lists of parliar-mentary voters for such burghs. The town clerk has no authority to alter the burgh lists then made up, even upon intimation that the sheriffs' lists have been subsequently altered by the Court of Review, but such burgh lists must remain until the 16th of September in the following year, and then be altered in conformity with the then existing parliamentary lists .for the burgh. Where, therefore, a person's name stood on the sheriffs' list on the 16th of September, and was transferred by the town clerk toi the burgh list on that day, s uch person was entitled to elect and be elected to1 a municipal office in virtue of so appearing on the burgh lists, though before the period of the municipal 478 MONTEITH V. M'GAVIN [1838] V CLARK & FINNELLY. elections his name had been, by the decision of the Court of Keview, removed from the parliamentary lists made up by the sheriff. Qu. ? Whether in such a case his right to elect or be elected can properly be dis^-cussed in the courts of Scotland by a bill of suspension a-nd interdict. The questions intended to be raised for decision in this cause were, first, Whether a.n application to the Court of Session by a Bill of Suspension and Interdict, to try and determine the validity of the election of a, member of the town council of a royal burgh, [460] was or was not a competent mode of procedure? And secondly, Whether (assuming that it was) the election of the respondent to the office of one of the town-coiuncillors of the royal burgh of Glasgow, was or was not a legal and valid election? * * The statutes that came under consideration in this case were the following: 3 and 4 Will. 4, cap. 76, s. 1, " That from and after the period when this Act shall come into operation, the right of electing the town-council in all such burghs respectively (except in those contained in schedule F. to this Act annexed) shall be in and belong to all such persons, and to such only (except as hereinafter excepted) as are or shall be qualified, as owners or occupiers of premises within the royalty, whether original or extended, of any such burgh, to vote in the election of a Member of Parliament for such burgh, by virtue of an Act passed in the 2d and 3d year of the reign of his Majesty King William 4, entituled an Act to amend the representation of the people in Scotland, and as are duly registered as such voters in the registers, by the sa.id recited Act appointed to be kept, and also in all such persons who are possessed of the qualifications described in the said recited Act, in respect of the property or occupancy of any house or other subject therein described, of the value thereby required, within the royalty of any royal burgh not now entitled to send Members to Parliament. Provided always, that all such electors who may be qualified as herein before provided, shall have resided for six calendar months next previous to the last day of June in this and all future years, within the royalty of such burgh, or within seven statute miles of some part thereof; provided also, that no person shall be entitled to vote who has been in the receipt of parochial relief, or who has been a pensioner of any corporation within twelve months of any such annual election, or for any burgh of which he may have been town-clerk at the time of such election, or of making up the list or roll of electors with a view to such elections." By the 2d and 3d Will. 4, c. 65, a new qualification is introduced for electors of Members of Parliament both in counties and in burghs, and a mode of ascertaining that qualification is established by means of an annual registration, to be conducted in the manner therein pointed out by the sheriffs of the respective counties. For this purpose each sheriff is to hold an annual court of registration both for county and city voters, in which he is to decide all claims or objections on or before the 15th day of September in each year; and by the 23d section it is enacted, " That the sheriffs' judgments, granting or refusing registration, shall, so long as they remain unaltered, be conclusive of the rights of parties claiming or objecting a,s atve, but that it shall be competent to any party considering himself aggrieved by any such judgment to appeal, and apply for an alteration thereof," in manner therein mentioned. By section 25th it is provided that appeals from the sheriffs' judgments on any annual registration shall be to the sheriffs liable in attendance at the Circuit Courts of Justiciary to which the different districts may belong; and it is enacted, " That the judgments1 of the said courts of review shall in all cases be final and conclusive', and liable to no process of review, and shall, whenever they reverse or vary the judgments of the sheriff appealed from, be warrants to him to alter or correct his registers in conformity thereto'; and he shall, on such judgments being made known to him by the parties, alter and correct such registers accordingly." By the same section it is provided that the cases thus brought under appeal shall be finally decided on or before the 20th of October in each year. By the 4th section of the 3d and 4th Will. 4, c. 76, it is enacted, " That the respective town-clerka of each royal burgh shall, on or before the 20th day of October in the present, and on or before the 16th day of September in all future years, make up and complete a list or roll of persons entitled to vote in the election of the common 479 V CLABK & FINNELLY. MONTEITH V. M'GAVIN [1838] [461] The royal burghs are regulated in their municipal system by the 3 and 4 Will. 4, c. 76. The burghs not royal are regulated by 3 and 4 Will. 4, c. 77. In all the classes of burghs, the principle of the [462] new municipal franchise is substantially the same. No peculiar franchise for municipal purposes has been contrived, but the rule is, that the municipal franchise shall be in the same class of persons on whom the Parliamentary urban franchise had before been conferred by the Reform Act, 2 and 3 Will. 4, c. 65. When the first Parliamentary register for Glasgow was framed, the Respondent was registered in virtue of a joint tenancy and occupancy of a warehouse in Brunsr wick-street, possessed by the firm of Robert M'Gavin and Company, of which he was one of the principal partners, and likewise in virtue of his sole tenancy and occupancy of his dwelling-house in Monteith-row. He voted without objection upon that qualification, at the first election of Members of Parliament. The firm of Robert M'Gavin and Son (of which, the Respondent is the principal partner) entered at Whitsunday 1833 into' possession as tena.nts of a warehouse or counting-house in George-square, which they continued to occupy until the 28th of May 1837. Those premises were of such a yearly value as to afford the Respondent an ample qualification as a joint tenant and occupant. At, the proper time, the Respondent lodged a claim to be registered as a,n elector, in virtue of Ms joint tenancy and occupancy of the former premises, and also of the new premises in succession; and he was duly registered accordingly. At the first election under the Municipal Reform Act, the Respondent was chosen to be a councillor for the first ward of the royal burgh of Glasgow, conformably to the provisions of the statute. He was [463] one of the two councillors who went out of office at the end of the first year, but was re-elected for the same ward, and was continued in office, without objection, until there was presented to the Court of Session the application for a suspension and interdict, now under discussion. Throughout the same period, the Respondent voted without challenge at different Parliamentary and municipal elections, occurring up to the end of May 1837. The copartnery of Robert M'Gavin and Son having1, at Whitsunday 1837, removed from their warehouse in George-square, to another in Cochrane^street, the Respondent lodged a claim to be registered anew. His claim was made in virtue of council of such burgh, in manner following, viz. the town-clerk of each burgh, which in virtue of the said recited Act, sends, either severally, or in combination with any other burgh or burghs, a, Member or Members to Parliament, shall make up and complete such list by transferring from the Parliamentary register for such burgh to such list or roll, the names of all the voters contained in such register entitled to vote in the election of a Member of Parliament, as are so registered in respect of properties situated within the royalty, whether original or extended, of such burgh, without requiring any claim, or admitting any objections against the persons so registered." By sections 7, 8, and 15, it is provided that certain burghs, of which Glasgow is one, shall make their elections by wards, and that on the first Tuesday of November in each year, " the electors qualified and entered on the list or roll made up as aforesaid, shall choose from among such of tJieir own number a either reside within the...
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