Scottish Court of Session Decisions

The Town Councils (Scotland) Act 1900 (63 and 64 Vict. cap. 49), section 26, enacts—“In every burgh not returning or contributing

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to return a member or members to Parliament, the assessor for the county or counties or districts thereof within which the burgh is situated shall on or before the fifteenth day of September in each year prepare an excerpt from the list of voters for parliamentary purposes for such county, containing the names of all persons appearing thereon in respect of premises within the municipal boundary, and the municipal register shall consist of (1) the said excerpt; (2) the supplementary list.” Section 67—“The whole expense of making up and printing the municipal register and in connection with the election of councillors and magistrates shall be defrayed either from the common good of the burgh, the assessment imposed or levied in the burgh under the provisions of the Registration Acts, or any assessment levied under the Burgh Police (Scotland) Act 1892, or any local Act, all as the council may determine, and the said expenses may be divided and apportioned among the said common good and assessments as the council think proper.”

David Murray Maxtone, Assessor for the County of Argyll, in January 1904 brought this action against the Provost, Magistrates, and Councillors of the burgh of Dunoon for the sum of £57, 7s. 4d., comprising (1) remuneration for work done by him in making up the municipal register of the burgh of Dunoon (a burgh falling under section 26 of the Town Councils (Scotland) Act 1900) for the years 1902–1903 and 1903–1904; (2) outlays made by him in connection with the work.

He pleaded—“The pursuer having performed the services and made the outlays referred to, and the defenders being due and indebted to him in the amount of the reasonable charges for said services and the amount of said outlays, decree as concluded for ought to be pronounced.

The defenders pleaded, inter alia—“(4) The pursuer being bound under the said Town Councils Act to perform the duties for which he claims payment, and his services being covered by his salary as county assessor, and there being no obligation imposed on police burghs to pay him any special fee therefor, the defenders should be assoilzied. (5) The pursuer not having a contract with the defenders, and not being entitled to demand remuneration or recover outlays from them, the defenders should be assoilzied, with expenses.”

The Lord Ordinary ( Low) on 2nd August 1904 pronounced the following interlocutor:—“Finds that the defenders are not bound to remunerate the pursuer for his services in making up the municipal register of the burgh of Dunoon, but that they are bound to repay to him the necessary and proper expenses which he has incurred in making up the said register: With these findings appoints the cause to be enrolled for further procedure, reserves the question of expenses, and grants leave to reclaim.”

Opinion.—“By the Town Councils (Scotland) Act 1900 certain duties are laid upon the assessor for the county in which a burgh not returning a member to Parliament is situated, in regard to making up a municipal register of voters. By the 67th section of the Act it is provided that ‘the whole expense of making up and printing the municipal register, and in connection with the election of councillors and magistrates,’ shall be defrayed out of the common good, or out of certain assessments, or shall be apportioned between them. There is nothing said in the Act as to the remuneration of the assessor for his labour and trouble in making up the register.

“The pursuer is assessor for the county of Argyll, and the defenders are the Town Council of the burgh of Dunoon, which is a police burgh situated in that county. The pursuer has as assessor for the county performed the duties, in the way of making up the municipal register of Dunoon, imposed upon him by the Act, and he now sues the defenders for remuneration for his services and for payment of certain outlays incurred by him.

“In regard to the outlays, assuming that they have been properly and necessarily incurred, I do not think that there can be any doubt that they fall, in terms of the 67th section, to be paid out of the common good or the assessments referred to in the section, and as the defenders have the administration and control of the common good and the assessments I think that the pursuer is entitled to sue them for payment of outlays which he has made on their behalf in the performance of his statutory duty.

“The question of remuneration, however, is in a different position. The pursuer did the work because it was imposed upon him by statute, and not because he was employed by the defenders to do it. The pursuer, therefore, cannot claim remuneration from the defenders on the ground of contract. Nor, in my opinion, is there any statutory obligation laid upon the defenders to remunerate the pursuer for his services. The statute imposes the duty of making up the municipal register upon the county assessor, but says nothing whatever about his remuneration, and I think that it is impossible to read into the Act by implication a provision that he shall be remunerated for his labour in making up the register by the magistrates of the burgh.

“The pursuer founds upon the 67th section, but I do not think that its provisions aid him. What the section deals with is the ‘expense’ of making up the register, and I do not see how remuneration to the assessor can possibly be included in the expression ‘expense’ unless some one is under a legal obligation to pay such remuneration. But the defenders (with whom alone this case is concerned) are, as I have shown, under no obligation, either statutory or contractual, to remunerate the pursuer.

“I may add that I am confirmed in the view which I have expressed by comparing the Act of 1900 with other Acts whereby similar duties have been laid on assessors. Thus by the Registration of Voters (Scotland) Act of 1856 the assessors in burghs are directed to make up registers, and it is provided (section 43) that after the completion

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of each annual register the magistrates shall fix the amount of the costs and expenses thereof, ‘including therein any remuneration to assessors which they may deem proper.’ Similar provisions are contained in the County Voters (Scotland) Act 1861. I think that those Acts show that when the Legislature intended assessors to be remunerated for such work express provision was made to that effect, and that when in the Act of 1900 no provision was made for remuneration it was because it was not intended that the assessor should receive any additional remuneration beyond his salary as county assessor.

“I may also refer to the English cases of Jones v. Mayor of Carmarthen, 1841, 8 M. & W. 605, and Queen v. Governors of the Poor of Hull, May 7, 1853, 2 Ellis & Blackburn 182.”

The pursuer reclaimed, and argued—He was entitled not only to outlays but also to reasonable remuneration for his services. That was the natural interpretation of section 67 of the Town Councils (Scotland) Act 1900, which imposed upon the burgh “the whole expense” of making up the register. His fee was a necessary part of the expense. The fact that it was not expressly stated to be so was immaterial, and corresponded with what was found in other similar Acts, e.g., the Lands Valuation (Scotland) Act 1854, sec. 18, and the Local Government (Scotland) Act 1889, sec. 28 (5), where it was only by implication that the assessor's remuneration was included in “expenses”— County Council of Lanarkshire v. Lord Advocate, March 15, 1892, 19 R. 617, 29 S.L.R. 497. Further, the Registration of Voters (Scotland) Act 1856, sec. 43, and the County Voters (Scotland) Act 1861, sec. 41, expressly included in “expenses” remuneration to assessors, and thereby indicated the general intention of the Legislature in cases of this class. Moreover, the effect of section 29 of the Town Councils Act of 1900 was to incorporate into that Act the express provisions of section 43 of the Act of 1856 and section 41 of the Act of 1861. The present was not the case of the statutory servant of a body with a fixed salary having to do extra work for that body without further remuneration, but of an outsider doing work gratuitously for a body with which he was unconnected. He was the servant of the County Council, and the County Council could only remunerate him for county not for burgh work—Local Government (Scotland) Act 1889, sec. 83 (3). This and the fact that they were upon different statutes differentiated the present case from those of Jones v. The Mayor of Carmarthen, 1841, 8 M. & W. 605, and Queen v. Governors of the Poor of Kingston-upon-Hull, 1853, 2 E. & B. 182, founded on by the Lord Ordinary.

Argued for the respondents—The reclaimer was entitled to his outlays but not to remuneration. The Act of 1900 imposed a duty upon him and was silent as to remuneration; the proper inference was that it was not intended to give him any. This was strengthened, as pointed out by the Lord Ordinary, by the fact that in the Registration of Voters (Scotland) Act 1856, sec. 43, and the County Voters (Scotland) Act 1861, sec. 41, it was thought necessary to introduce an express provision that in cases covered by these sections “expenses” might, if deemed proper, include remuneration to assessors. The case was ruled by Jones v. The Mayor of Carmarthen, supra; Queen v. Governors of the Poor of Kingston-upon-Hull, supra; The Queen v. Allday, 1857, 7 E. and B. 799.