Schoolmaster of a royal burgh removeable summarily by the council, upon just cause.
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Mr John Hastie was admitted rector of the grammer-school of Campbelton, by the Magistrases and Council, upon an examination by the Presbytery; and, beside the allowance given by the town, received a yearly salary modified by the Commissioners of Supply.
After he had been some years in the office, a memorial was presented to the Council by Patrick Campbell of Knap, burgess, residenter in Campbeltown, for himself and others, residenters in Campbeltown, complaining that Mr Hastie was irregular in his attendance upon the school; that he was in the practice of correcting his scholars in a cruel and barbarous manner, to the danger of their health; and praying the Magistrates to inquire into the matter, and give proper relief.
This memorial was served upon Mr Hastie, who gave in answers, but afterwards withdrew his compearance; and a proof having been taken, the Magistrates found all the articles complained of proved, and deprived him of his office.
Mr Hastie brought a reduction, and, objecting to the evidence, as led ex parte, contended, That the procedure was irregular in various particulars.
1mo, Town-councils of royal burghs, are no more than administrators of the common concerns of the borough, but they are no court, and have no jurisdiction; so that Mr Hastie's appearing and giving in answers could not infer prorogation. Even the Magistrates had no jurisdiction in this matter. By act 1693, c. 22, School-masters are declared “liable to the trial, judgment, and censure of the presbyteries of the bounds, for their sufficiency, qualifications, and deportment in their office.” And the school of Campbeltown was not a mere establishment by the borough; it was a parochial school also.
2do, There was no proper libel in this case. The memorial presented to the Council cannot be considered as a libel; no particular fact being stated in it and no conclusion inferred, nor any thing laid which could amount to a relevancy.
3tio, Members of the Council were received as witnesses, and afterwards acted as judges; indeed, as the pursuers are not designed, even parties may have been admitted to give evidence.
4to, The proceedings were carried on without the instance or even the concourse of a procurator-fiscal, an indispensable requisite in every criminal case. There is no officer who acts in the character of procurator fiscal for a town-council; which is an additional argument to shew that they were not competent to the question.
Answered; The whole argument proceeds on the mistake of considering Mr Hastie as a person accused of a crime, and brought to trial in order to satisfy public justice. But, admitting that the town-council was not competent to take trial of crimes; that the memorial was not conceived in the form of a criminal libel; that the proceedings were not agreeable to the strict rules of criminal procedure, in which the concourse of a procurator fiscal is necessary; these things can have no weight in the present case. The question here is, whether Mr Hastie, the public servant of the borough, is not subject to the just controul of the Magistrates and Council, by whom he was admitted?
It has been found, indeed, that schoolmasters, and other public officers, cannot be removed arbitrarily; but in no case has the Court interposed, to counteract the discretionary power of removal, when exercised upon just and proper grounds; and, it appears from the decisions of the Court, that, in such cases, magistrates are not tied down to observe the niceties of criminal procedure, or even the strict rules of legal evidence.
These principles were established in the case of the Magistrates of Montrose No 26. p. 13118. and in other cases, mentioned above. They have been followed, in later decisions, as 10th November 1747, Foulis contra Vestry of Blackfriars-Wynd Chapel, No 2. p. 6581; 27th July 1756, Harvie contra Bogle and Kirk-session of Glasgow, No 36. p. 13126.
The act of 1693 seems to be confined to schools in the country; and if it be extended to those in boroughs, can go no farther than to vest a jurisdiction in the presbytery cumulative with that of the Magistrates and Council.
The Lords “repelled the objection to the competency of the Magistrates Council.”
Thereafter, the Lords having considered the proof, repelled the resons of reduction, and assoilzied, the defenders. Upon a petition, they altered their interlocutor, and reponed the pursuer to his office, But this judgment was reversed in the House of Lords.
Act. crosbie.Alt. Ilay Campbell.Reporter, Pitfour.
Fol. Dic. v. 4. p. 196. Fac. Col. No. 97. p. 351.
