Scottish Court of Session Decisions

The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), Sched. B, prescribes general rules respecting the election of members of a school board subsequent to the first election. Section 14, subsequently repealed, inter alia, enacted—“Any question or dispute regarding the election of a candidate shall be summarily determined by the Sheriff of the county on the petition of any person interested having a legal title and interest to raise such question, and the determination shall be final.”

The Education (Scotland) Act 1878 (41 and 42 Vict. cap. 78), sec. 26, enacts—“The principal Act” ( i.e. the Act of 1872) “shall be construed as if there were substituted for the rule numbered four in Schedule B to the principal Act the rule in the schedule to this Act.” Section 27—“The schedules to the principal Act and to this Act shall be of the same force as if they were enacted in these Acts respectively.” And the schedule is quoted supra in the rubric.

The Scotch Education Department, acting under the power conferred by the Schedule to the 1878 Act, on 2nd October 1905 issued a general order for the regulation of the triennial election of school boards which fell to be held in 1906, in which they made regulations as to the nomination of candidates, and by clause 9 of said general order, inter alia, provided—“The returning officer shall decide whether any nomination is valid, and his decision shall be final.”

The Elections (Scotland) Corrupt and Illegal Practices Act 1890 (53 and 54 Vict, cap. 55), sec. 2, enacts, inter alia—… “‘Corporate office’ means the office of county councillor, town councillor, or police commissioner of a burgh, member of parochial board, or member of school board.’ ‘Election’ means an election to a corporate office as defined by this Act. … ‘Election court’ means a court constituted under this Act for the trial of an election petition. ‘Election petition’ means a petition under this

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Act complaining of an undue election. … ‘Election’ when used with reference to a petition means the election to which the petition relates. …”

Section 30 (1)—“An election may be questioned by an election petition on the ground ( a) that the election was wholly avoided by general bribery, treating, undue influence, or personation; or ( b) that the election was avoided by corrupt or illegal practices; or ( c) that the person whose election is questioned was at the time of the election disqualified; or ( d) that he was not duly elected by a majority of lawful votes.”

George Kerr, writer, Hawarden, Port Glasgow, a ratepayer of the burgh of Port Glasgow, who was entitled to vote at the school board election after mentioned, raised an action against (1) John Hood, solicitor, Glenclune, Port Glasgow, returning officer at the election of the Port Glasgow School Board, which took place or was alleged to have taken place on 29th March 1906, and (2) Alexander Butler and others, being the persons declared by the first defender to have been elected members of the Port Glasgow School Board at the said election. The pursuer in his action sought to have reduced and declared null and void (First) two pretended decisions made and intimated on 15th March 1906 by the said John Hood, the defender first called, as returning officer foresaid, whereby he declared that nomination papers lodged in his hands on the 14th day of March 1906, nominating the said George Kerr and Louis Blair, solicitor, residing at Braeside, Port Glasgow, as candidates at the election of the said School Board for the burgh of Port Glasgow, were invalid; and (second) a pretended declaration of the result of the said election of members of the said School Board on 29th March 1906, made, published, and subscribed, by the said John Hood, the defender first called, as returning officer foresaid, whereby he declared the defenders second called to have been duly elected members of the said School Board without the necessity of a poll.

The pursuer, inter alia, pleaded—“1. The pursuer is entitled to decree of reduction and declarator as craved for, with expenses, in respect (1) that the said nomination papers were valid and were illegally rejected by the defender first called, and (2) that no valid election took place on or about 29th March 1906. 2. The said nomination papers, although valid, having been maliciously rejected by the defender first called, and no valid election having taken place, decree of reduction and declarator should be granted as craved, with expenses. 3. The provision in clause 9 of the General Order referred to, that the returning officer's decision as to the validity of nominations is final, is ultra vires of the Scotch Education Department and is no bar to the present action.”

The defenders, inter alia, pleaded—“1. No jurisdiction. 2. The action is incompetent. 3. No title to sue. 4. All parties not called. 5. The pursuer's averments are irrelevant and insufficient to support the conclusions of the action.”

The facts of the case appear from the opinion of the Lord Ordinary ( Johnston), who on 28th February pronounced this interlocutor—“Repels the first four preliminary pleas-in-law for the compearing defenders: Reserves the fifth preliminary plea-in-law for said defenders to be discussed with the pleas-in-law for said defenders on the merits: Allows said defenders to satisfy the production in six days: Finds said defenders liable in expenses to the pursuer in connection with the lodging of preliminary defences: Allows an account to be given in, and remits the same to the Auditor to tax and report: Grants leave to reclaim.”

Opinion.—“In this case George Kerr, writer, Hawarden, Port-Glasgow, who is admittedly a ratepayer of the burgh and was entitled to vote at a recent School Board election which took place in March 1906, and who was also a candidate for election, seeks to have the election set aside by reason of the returning officer's rejection of the nomination papers of himself and of another candidate, Lewis Blair, also writer, Port-Glasgow. For this purpose he has raised an action of reduction ( first) of two decisions made and intimated on 15th March 1906 by John Hood, solicitor, Port-Glasgow, the clerk to the School Board, and pro hac vice the returning officer at the election, whereby he declared the two nomination papers foresaid, which had been lodged in his hands on the previous day, which was the nomination day, to be invalid, and ( second) of the declaration by the said John Hood, as returning officer foresaid, of the result of the election, whereby he declared the remaining candidates to have been duly elected without the necessity of a poll. By the rejection of the two nomination papers in question there were left only nine candidates, being the exact number required to complete the board, and so no poll was required.

“To this action of reduction the pursuer calls as defenders ( first) the said John Hood, as returning officer, and ( second) the nine candidates who had been declared elected. These latter he calls as individuals, and he does not call the School Board as a corporation. The returning officer and five only of the candidates who were declared to have been duly elected have entered appearance to defend the action.

They have entered a plea—‘No. 4. All parties not called’—founded on the contention that the School Board, which is a body corporate under the Education Act 1872, ought to have been called in its corporate character. Counsel for the defenders, however, intimated that they did not press the plea, as the parties were all desirous of having a decision of the matter at issue. I do not think that I can accept the situation so created, as I am dealing with the election of a public body, in which the public of Port-Glasgow and not merely the candidates for office are interested, and I shall therefore consider the plea in due course.

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Stated shortly, the pursuer complains of the rejection of his and Mr Blair's nomination papers on the ground that the returning officer's objections to them were frivolous and not justified by any good reason, that they were taken by him for a sinister purpose, and that, had he meted out the same measure to all the other candidates, he would have been bound to reject several, if not the whole of them. To this action certain preliminary pleas are taken which I am called upon now to dispose of.

The defenders plead, in the first place, that the Court has no jurisdiction. This plea I understand to be founded on a regulation of the Scottish Education Department whereby it is declared that ‘the returning officer shall decide whether any nomination is valid, and his decision shall be final.’ I do not think that it was intra vires of the Department to confer finality on this decision of the returning officer so as to exclude all appeal to the Court. The powers of the Department are to be found in the schedule to the Education Act 1878, whereby it is declared that a school board election is to be held at such time and in such manner and in accordance with such regulations as the Department may by order prescribe; and power is conferred on the Department to appoint or direct the appointment of any officer requisite for the purpose of such election, and to make regulations as to his duties; and further, to make regulations respecting all other necessary things preliminary or incidental to the election. I do not think that these powers either entitled the Department to determine finally—that is, to the exclusion of the Court's jurisdiction—the validity of a nomination or to depute to the returning officer or to anyone else to do so. I think that what the Legislature intended to do by this schedule was to empower the Department to enact all necessary regulations for the due and orderly conduct of an election, so that there should be a known order or method for the conduct of the election, with prescribed times, seasons, and modes of doing all necessary acts, with sufficient publicity and effectual equality and fairness to all concerned. Therefore I think it would be quite within the powers of the Department to direct that the returning officer should decide in due time whether any nomination was valid, so that the proper and timeous publication of the candidates' names should be made, election papers be prepared, and the election itself proceed according to the prescribed order without check or delay. But it is another thing to enact that the decision of the returning officer shall be final. I cannot hold such an enactment to be a regulation in accordance with which an election is to be held. Nor can I hold it to be a regulation as to the duties of an officer requisite for the purpose of an election, or a regulation respecting any necessary matter preliminary or incidental to such election. Were it to receive the effect claimed for it, it would preclude all inquiry into the conduct of a returning officer in the matter of a nomination, however grossly incompetent, or biassed, or even corrupt, such conduct may have been. I therefore think that the plea of no jurisdiction falls to be rejected.

In the second place, the defenders plead that the action is incompetent. That plea I understand to be founded on the contention that, if any relief is competent it can only be had by petition to the Sheriff of the county. Apparently the ruling enactment is the 30th section of the Elections (Scotland) Corrupt and Illegal Practices Act 1890, which provides that an election may be questioned by an election petition before the Sheriff on four specified grounds, and that an election shall not be questioned on any of these specified grounds by way of reduction or suspension, or by any form of proceeding except by an election petition. But the ground upon which the present election is challenged is not one of the four specified grounds, and I do not therefore think that the action is rendered incompetent by reason of this enactment. I concur in the opinion expressed by Lord Kincairney in Hodge v. School Board of Ballingry, 1897, 35 S.L.R. 634. I would also refer to section 44 of the Corrupt and Illegal Practices Act 1890, which recognises that the Court of Session has jurisdiction, at least to some effect.

In the third place, the defenders plead no title to sue, but they presented no argument upon this plea, and I see no ground to sustain it. The pursuer has manifestly a good title to sue as a voter and a candidate in respect of his own nomination, and as a voter in respect of Mr Blair's nomination.

In the fourth place, it is pleaded that all parties are not called. I have already referred to this plea, but after full consideration I think that it falls to be repelled. The summons has evidently been modelled on that of Duncan v. Crichton, 1892, 19 R. 594, which was directed, not against the School Board, but against the individual members who claimed to be the School Board. As here, the contention was that the whole election was invalid. Now, a school board which has not been duly elected is not a school board ( per Lord Rutherfurd Clark at page 600), and I think that it would be inconsistent with the scheme of the action to require the pursuer to recognise that as a school board by calling it in its corporate capacity which he comes into Court seeking the opportunity to prove is no school board. It may be no school board, and yet its acts preceding the decision of the question of the validity of its election may be effectual—see the Corrupt, &c., Practices Act 1890, section 44. Though there was no decision of the point in Duncan's case, as it was not raised, I think that the procedure there was correct, and may be followed in the present case.

In the fifth place, there is a plea to the relevancy. I cannot say that I see much ground for this plea. But owing to the way in which the relevancy and merits are

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mixed up in this case, I think that it would be as well to reserve it by making the inquiry into the facts which is necessary one before answer.

But I am not prepared to allow this proof without limitation. There are serious averments made by the pursuer as to the motives of the returning officer in rejecting the nomination papers in question. So far as these alleged motives may have been of a personal character I do not think that they are relevant to the inquiry. He may have had the deepest animus against the pursuer, or the most extravagant bias in favour of the other candidates, though I am far from suggesting that he had either, but if the nomination papers in question were invalid he was bound to reject them, and it does not matter that he may have done so with a sinister satisfaction in that he was thus affording a clear road to election for his friends. All personal matters therefore between the pursuer and the defender the returning officer must be excluded from the proof. But it is another thing to exclude all inquiry into the manner in which the returning officer has dealt with the nomination papers of other candidates. The objections taken by the returning officer to the nomination papers in question, though not very clearly stated by him on record, appear to be somewhat matters of degree and impression, and it may be—I do not at present and until I know the facts say that it is—competent and proper to judge his action with regard to the papers rejected to some extent in view of his action with regard to papers accepted.

I shall accordingly, after the production is satisfied and the record in a position for me to deal with the merits, pronounce an interlocutor before answer allowing parties a proof of their respective averments, exclusive of those contained in condescendence 12, so far as they allege the action of the defender John Hood to have been malicious.”

The defenders reclaimed, and argued—The decision of the returning officer was final. The order of the Scottish Education Department declared it to be so. That order was not ultra vires; it was made in exercise of the powers conferred on them by the schedule to the Education (Scotland) Act 1878. The whole machinery of elections, including the ballot and nomination papers, was the creation of the Education Department, and consequently it was within their power to issue the regulation in question. The following authorities were referred to — Bone v. Sorn School Board, March 16, 1886, 13 R. 768, Lord Adam at p. 773, 23 S.L.R. 537; Hodge v. School Board of Ballingry, November 2, 1897, 35 S.L.R. 634. (2) In any case procedure should have been by petition to the Sheriff under section 33 of the Corrupt Practices Act 1890, and not by action of reduction. The present case fell under the third, or at any rate under the fourth, of the categories of that section. The words “by a majority of legal votes” were not intended to exclude the case where no voting was necessary. There was equally an election whether a candidate was elected at a contested election or whether he was declared duly elected because there were no more nominations than vacancies. Petition to the Sheriff was intended to be the ordinary mode of review. It had been so under section 14 of the Education Act of 1892, and the repeal of that section was simply for purposes of codification.

Argued for the pursuer (respondent)—The order of the Education Department if intended to exclude review by the Court was ultra vires. Possibly, however, it was only intended to provide that while the election was going on the decision of the returning officer should be final. The power to make regulations should be construed strictly, as in Duncan v. Crighton, March 10, 1892, 19 R. 594, Lord Rutherfurd Clark at p. 600, 29 S.L.R. 448. In Bone, cit. sup., Lord Adam in saying, regarding the finality of a returning officer's decision as to nomination “No “did not express his opinion, but merely pointed out that the opposite had not been argued. (2) The appropriate method of reviewing the matter had been taken in bringing an action of reduction, because the present case did not fall under any of the four instances stated in section 30. There had been no election “by a majority of lawful votes” as required in the fourth case.