Scottish Court of Session Decisions

The pursuer of this action, Mr Gavin Hamilton, writer in Glasgow, was appointed clerk to the Dunoon Police Commissioners in the year 1868 “at a salary of £40 for the first year.” Dunoon is a burgh within the provisions of the General Police (Scotland) Act 1862, and the pursuer's appointment as clerk was made in terms of the 67th section of that statute. At a meeting of the Police Commissioners of the burgh on 17th January 1870, a motion was carried removing the pursuer from his office of clerk, and at a subsequent meeting Mr David Gray, writer in Glasgow, was appointed in his place. The pursuer thereupon raised this action against the Police Commissioners, in order to have it found and declared that he as clerk, duly appointed under the provisions of the Police Act of 1862, held his office ad vitam aut culpam, and that it was ultra vires of the Commissioners to supersede him without reasonable ground, and without proving culpa on his part. The summons further craved reduction of the minutes and resolutions under which his removal from office was effected, and also prayed to have the Commissioners interdicted from carrying out said minutes and resolutions. The first plea in law for the defenders was as follows;—“Under the 64th section of the Act 25 and 26 Vict., cap. 101, the pursuer was removeable from his office of clerk at the pleasure of the Police Commissioners.” They also pleaded that the appointment, as proved by their minute-book, bore to be and was for one year only, and that in any event the pursuer's conduct while in office was such as to justify his removal. Two of the defenders, Bailies Stirling and Somerville, put in separate defences to the effect that, having disapproved of and opposed in every way the proceedings of the Commissioners complained of by the pursuer, they now offered no opposition to the conclusions of the summons, and disclaimed all liability for any expense that might be incurred.

A debate took place in the Outer House on the first plea in law for the defenders.

The Lord Ordinary ( Mure) pronounced the following interlocutor:—“The Lord Ordinary having heard parties' procurators, and considered the closed record, repels, hoc statu, the first plea in law for the defenders, the Commissioners of Police, and, before further answer, allows both parties a proof of their averments, and to each a conjunct probation, and appoints the proof to be taken before the Lord Ordinary on a day to be afterwards fixed.

“ Note.—After considering the provisions of the General Police Act, which are in many respects neither consistent nor explicit in regard to the conditions under which certain of the offices created by it were to be held, the Lord Ordinary, as at present advised, is not prepared to hold that clerks appointed to discharge the duties required of the clerk appointed under section 67 of the statute are removeable at the pleasure of the Commissioners in the summary way in which the pursuer appears to have been removed. If, however, the defenders can show, as alleged by them, that the pursuer's original appointment was only for one year, and thereafter renewed ad interim merely, of which there is at present no satisfactory evidence, that may place the defenders in a different position in the above respects. If, on the other hand, it should be decided that the pursuer's appointment as clerk was one ad vitam aut culpam, the Lord Ordinary does not think he would be warranted in holding, without inquiry, and assuming the facts set forth in the defence to be true, that the grounds upon which it is alleged that the defenders acted in removing the pursuer were insufficient to justify the removal. Before, therefore, disposing of the abstract question of law raised in the record, the Lord Ordinary has deemed it necessary to have the facts on which parties are at issue ascertained.”

The defenders (with the exception of Bailies Stirling and Somerville) reclaimed.

Solicitor-General and Hall for them.

Scott for pursuer.

W. F. Hunter for defenders Stirling and Somerville.