Town-Council of Aberdeen

JurisdictionScotland
Judgment Date19 October 1901
Date19 October 1901
Docket NumberNo. 4.
CourtCourt of Session
Court of Session
1st Division

Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 4.
Town-Council of Aberdeen.

Burgh—Magistrates—Tenure of Office—Statute—Clause saving local Acts—Town-Councils (Scotland) Act, 1900 (63 and 64 Vict. c. 49), secs. 33, 57, 117—Aberdeen Corporation Act, 1891 (54 and 55 Vict. cap. cxxiv.), sec. 15.—

The Town-Councils (Scotland) Act, 1900, enacts, section 117,—‘Nothing in this Act contained shall supersede, prejudice, or affect the provisions of any local Act applicable to any burgh, or the forms of prosecutions and procedure in use therein under such Act.’ The Act contained enactments regulating the mode of election and tenure of office of magistrates inconsistent with those of a local Act applicable to Aberdeen. Held that section 117 applied, and that the provisions of the local Act were not superseded.

In July 1901 the Town-Council of Aberdeen presented an application under section 113 of the Town-Councils (Scotland) Act, 1900,* for the purpose of determining the method of procedure to be followed in regard to the election of magistrates in the Town-Council as constituted in the following November, when the election of new councillors fell to be made.

The main question submitted to the Court was whether the provisions of section 15 of the Aberdeen Corporation Act, 1891, a local Act, in regard to the election and tenure of office of magistrates, was superseded by the general provisions of the Town-Councils (Scotland) Act, 1900.

Under the former Act the magistrates were elected at each November meeting of the council after the election of new councillors, and held office for a year. Under the provisions of the Act of 1900 the magistrates held office from the date of their election as such until they retired as councillors, a period which might extend to three years.

The petition set forth that the Aberdeen Town-Council consisted of thirty-three members and the Dean of Guild, eleven councillors

retiring each year; that there were six magistrates, in addition to the provost, elected annually under the existing practice founded on the local Act of 1891, which repeated the provisions of a series of earlier local Acts, and that guidance was necessary as to the election of magistrates which would in ordinary course take place in November after the election of new councillors, the Act of 1900 having come into force since the previous November election.

The petition further stated:—‘Upon the interpretation of the foresaid section 117 of the Town-Councils (Scotland) Act, 1900, in a question which had arisen concerning the sections in the said Act dealing with matters of audit, a circular was issued by the Secretary for Scotland to the town-clerks of the various burghs in which his Lordship states, that as advised he is of opinion that section 117 of the Act “is not to be read absolutely, but that where it comes into conflict with words of positive enactment, the words of positive enactment must prevail.” On the other hand, the petitioners have since been advised by counsel concerning the sections above quoted, that section 15 of the local Act of 1891 is not superseded by the fore-said section 57 of the Town-Councils...

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