Kerr v. Hood and Others [1907] ScotLR 652 (16 May 1907)

Kerr v. Hood and Others [1907] ScotLR 652 (16 May 1907)

The order of the Scottish Education Department purporting to make the returning officer's decision on nomination papers final is ultra vires insofar as it excludes the jurisdiction of the Court of Session; an action of reduction is competent to challenge such decisions where the grounds do not fall within the statutory grounds for election petitions under the 1890 Act.

Citation
[1907] ScotLR 652
Parties
Pursuer (applicant): George Kerr; First Defender (respondent), Returning Officer: John Hood; Second Defenders (respondents): Alexander Butler and others (nine candidates declared elected)
Jurisdiction
Scotland
Judgment Date
16 May 1907
Procedural Posture
Civil (action of Reduction) / Interlocutory Decision on Preliminary Pleas
Outcome
Preliminary pleas for the defenders (respondents) repelled; action allowed to proceed to inquiry on the merits.
Legal Topics
Jurisdiction of Courts, Ultra Vires, School Board Elections, Finality of Administrative Decisions, Competency of Reduction Actions
Public Law Administrative Law Election Law Education Law Jurisdiction of Courts Ultra Vires School Board Elections Finality of Administrative Decisions +1 more

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Parties

George Kerr

Pursuer (applicant)

John Hood

First Defender (respondent), Returning Officer

Alexander Butler and others (nine candidates declared elected)

Second Defenders (respondents)

Procedural Posture

Civil (action of Reduction) / Interlocutory Decision on Preliminary Pleas

Legal Issues

  1. 1 Whether the Scottish Education Department's order making the returning officer's decision on nomination papers 'final' is ultra vires and excludes court jurisdiction
  2. 2 Whether an action of reduction is competent to challenge the rejection of nomination papers in a school board election, or if the only remedy is an election petition to the Sheriff under the Elections (Scotland) Corrupt and Illegal Practices Act 1890

Ratio Decidendi

The order of the Scottish Education Department purporting to make the returning officer's decision on nomination papers final is ultra vires insofar as it excludes the jurisdiction of the Court of Session; an action of reduction is competent to challenge such decisions where the grounds do not fall within the statutory grounds for election petitions under the 1890 Act.

Court Disposition

Preliminary pleas for the defenders (respondents) repelled; action allowed to proceed to inquiry on the merits.

Orders

  • Repels first four preliminary pleas-in-law for defenders: no jurisdiction, incompetency, no title to sue, all parties not called.
  • Reserves fifth plea (relevancy) for discussion on the merits.