Scottish Court of Session Decisions

The town of Stromness, in the county of Orkney, is a burgh of barony, incorporated by a Royal charter dated 18th February 1817, and written to the seal, registered and sealed at Edinburgh 21st March 1817, with all powers whatever pertaining to any free and independent burgh or barony, and in particular with power to the burgesses to elect their own magistrates and councillors, viz., two bailies and nine councillors, it being declared that all male inhabitants within the burgh, being of lawful age and infeft in any heritable subject within the said limits, or possessing as tenants any heritable subject within the same of a rent of £10 sterling yearly or upwards, should have the right of burgesses and be entitled to vote at the elections. By the charter provision was made for the first election by the burgesses of two bailies and nine councillors, who should continue in office till the first Wednesday of September 1819, when the burgesses should again meet for the purpose of electing magistrates, councillors, and town-clerk in like manner as in the original election, and it was declared that the like election should take place on the first Wednesday of September in every third year thereafter.

The first election of the Magistrates and Council of the burgh of Stromness was held as provided by said charter in the year 1817, and subsequent elections have been held on the first Wednesday of September in 1819, and every third year thereafter, the last having been held on the first Wednesday in September 1888.

In 1863 the burgh of Stromness adopted the General Police and Improvement (Scotland) Act 1862, but notwithstanding that fact and the extension of the franchise under the General Police Improvement Act Amendment Act of 1868 to male occupiers of premises of the value of £4 per annum, and under the Improvement Act of 1882 to female occupiers, no change was made in the municipal qualifications, and elections continued to be made every third year, and voting by ballot was not introduced in spite of the passing of the Ballot Act of 1872, as it had been considered that these statutes did not apply to the burgh of barony.

In a petition presented by the acting Magistrate and Councillors of the burgh, however, they stated that “when preparing for the election, which according to former practice would have taken place in September last, doubts arose in the minds of the petitioners on the subject, and, upon advice, they resolved not to hold the election in September on the old qualification, but that effect should be given to the changes above indicated, and

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the election held in conformity with the Ballot Act 1872, and the other relative statutes. The authority of the Court for this purpose is accordingly desired by the petitioners. With this view it will be necessary to make up from the valuation roll a correct list of voters, including such females as are pointed out by the Act of 1882. It will also be necessary to fix a day for the election, and to have some fit person appointed as returning officer in order to conduct the election under the Ballot Act, seeing that the senior Bailie (Mr James Spence), on whom the duty is thrown by the Ballot Act, has left Stromness and become resident in Aberdeen, and has demitted office, and that the petitioner Mr John Aim Shearer, the other Bailie, is a canditate for re-election.” The prayer of the petition was that the Court should “authorise and ordain the petitioner, John Stanger Copland, Town-Clerk, Stromness, and treasurer to the Police Commissioners thereof, to make up and certify a list or roll of electors of the said burgh of Stromness, duly qualified in terms of law, including male occupiers of lands or premises of the yearly value of £4 and upwards as appearing in the valuation roll, and female occupiers of lands or premises as aforesaid who are not married, or, being married, do not live in family with their husbands, or otherwise, including only persons qualified in terms of the said charter of Stromness; and to authorise and appoint the Sheriff-Substitute of Orkney, at Kirkwall, whom failing William Cowper, Esq., Town-Clerk of Kirkwall, to act as returning officer at the election of magistrates and councillors, on Tuesday the 3rd day of November next, or on such other day as your Lordships may appoint, due intimation thereof being given as your Lordships may direct, with all the statutory and other powers competent and necessary for the discharge of the said office in manner provided by the General Police and Improvement Scotland Act 1862, and the other Acts regulating municipal election in Scotland.”

When the petition was heard in Single Bills on 10th November, the date of elections named in the charter, and the first Tuesday in November specified by 3 and 4 Will. IV., c. 76, amended by the Municipal Elections Amendment Acts of 1868 and 1870, had both elapsed, and the Court refused to consider the petition if it involved a determination of the question whether the roll should be made up under the charter or under the Municipal Elections Acts, and whether vote by ballot applied, and stated that the parties must decide these questions for themselves or bring a declarator. The Court, however, consented to appoint a returning officer and continued the hearing for fourteen days.

The petitioners lodged a minute stating that they were advised that the election of magistrates for the burgh of barony of Stromness fell to be made in terms of the charter of the burgh of 1817 except as regards the manner of taking the poll, to which the provisions of the Ballot Act applied.

The Court thereafter appointed the Sheriff-Substitute to act as returning officer at the election to be held on the 18th December, but refused to insert in the interlocutor that he was vested with the statutory powers provided by the Ballot Act 1872.