John Anderson v. the Kirk Session of Kirkwall and John Redford
Date: 13 January 1779 Case No. No 6.
Precentor and session-clerk removeable at the pleasure of the kirk session.
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John Anderson was appointed by the kirk session of Kirkwall their clerk and precentor, in place of John Redford, who had removed to another part of the country. Redford having soon after returned, the kirk session dismissed Anderson from the offices of clerk and precentor, and reinstated Redford. Anderson brought a reduction of Redford's appointment, and declarator of his own right to hold both offices, in which he called the Kirk Session and Redford.
Pleaded for the pursuer; A person holding a public office is presumed to hold it ad vitam aut culpam, if there is nothing in his commission to the contrary, and usage has not established a different rule. On this ground, it has been found, that a schoolmaster in a royal burgh is not removeable arbitrarily, at the pleasure of the magistrates, though his act of admission did not bear during life; Magistrates of Montrose against Strahan, 1710, voce Public officer; Fowlis, 10th Nov. 1747, No 2. p. 6581. The offices of precentor and session-clerk are public offices; they are part of the ecclesiastical polity, and the office of Session-clerk is likewise of importance to the community, as furnishing the record of marriage and baptisms.
Auswered for the defenders; A commission for holding an office, whether public or private, must, like every other mandate, be considered as revocable at pleasure, unless the contrary be expressed. In some cases, public offices are held ad vitam aut culpam, either from the long usage, or the express terms of their commission. Many others are held during pleasure only; but the offices of session-clerk and precentor are not to be considered as public offices. That of schoolmaster is established by statute, and a fund appointed for the support of those who hold it; session-clerks and precentors are neither established nor provided for by law. A kirk session may have a clerk or not as they incline; and he is merely the private servant of the session.
The Court found, “That the pursuer held the offices of precentor and session-clerk of Kirkwall during pleasure, and therefore assoilzied the defenders from the reduction.” See Public Officer.
Lord Ordinary, Braxfield.Act. Stewart.Alt. Honeyman.Clerk, Menzies.
Fol. Dic. v. 3. p. 372. Fac. Col. No 52. p. 93.
