Scottish Court of Session Decisions

On 20th March 1872 Robert Lyle, notary public, and Thomas Dall, C.A., Edinburgh, were appointed jointly as town-Clerks of the royal burgh of North Berwick. On Mr Dali's death Mr Lyle was appointed sole town-clerk of the burgh on 12th April 1880. At this time the town-clerk's salary was £8 per annum, and he also drew fees for conducting certain portions of the business of the burgh though in his official capacity. On 10th January 1881, by minute of the town council, it was resolved that he should receive £35 in name of salary, and in satisfaction of the fees which he had previously drawn, certain special work to be paid for separately. Mr Lyle was also clerk to the police commissioners of the burgh, but although the commissioners as a matter of fact were the same persons as composed the town council, they were a perfectly independent body, and could appoint separate officers of their own, who were not necessarily these of the town council.

In March 1884 a motion was made that the clerk's salary should be reduced to £8, and on 7th July Mr Lyle raised an action against the town council for declarator that he had been appointed town-clerk at a salary of £35, that he held his office ad vitam aut culpam, and that the council was not entitled to reduce his salary or alter the conditions of his office without his consent; and on 4th December 1884 Lord M'Laren (Ordinary) pronounced an interlocutor by which, inter alia, he granted declarator to that effect.

For some time before the raising of the action now to be reported, the relations between the town council and the town-clerk had been very much disturbed, and in February 1885 the magistrates and council raised this action of declarator that the defender's tenure of the office of town-clerk should cease and determine as at 28th February 1885, under and in terms of a resolution of the pursuers dated 24th November 1884, to the effect—“The magistrates and council having considered the memorial for the town council submitted to the Lord Advocate and Mr Strachan, advocate, and their opinion thereon in reference to the power of the town council to dismiss the town-clerk, and further, considering that the business of the burgh cannot be satisfactorily and efficiently conducted so long as he remains in office, resolve that Robert Lyle, the present town-clerk of the burgh of North Berwick, be dismissed from the office of town-clerk of the burgh, and that his dismissal shall take effect on and from the 28th day of February 1885, being three months hence;” and that the pursuers would thereupon be entitled to appoint another person to the office with all its emoluments. There was also a conclusion for interdict against defender continuing to act as town-clerk, and a conclusion for delivery of all documents in his possession as such. The principal allegation of the pursuers, which was denied by the defender, was contained in Cond. 3—“For a considerable time past the defender has conducted himself in an insolent and disrespectful manner, and manifested feelings of bitter hostility towards a number of the members of the council; he has on various occasions charged them with falsehood without having any grounds therefor; he has made false and slanderous charges against the provost; he has, directly or indirectly, contrary to the desire of pursuers, made public proceedings at private meetings, by supplying erroneous reports thereof to a local newspaper, and endeavoured, by these reports and the publication of a scurrilous and abusive document, to cast ridicule on the provost in the discharge of his public duties, and to hold him up to contempt; in place of assisting the pursuers in the discharge of their duties, he has systematically obstructed, insulted, and annoyed them; he has refused to carry out or obey their legitimate instructions; he has inserted in the minute-book, and made public as a minute of the council, a document which they, the council, refused to approve and never authenticated; he has taken advantage of his position as town-clerk to insult and asperse the character of individual members of the council; he has, by his gross negligence and carelessness in the discharge of his duties, involved the town council in litigation and serious expense; and, in general, he has conducted himself in a manner inconsistent with a proper and faithful discharge of his duties as town-clerk, and so as to render it impossible for the pursuers to continue to discharge the duties of their office with any respect for themselves or satisfaction to the public so long as he continues to hold said office. The course of conduct so maliciously pursued by the defender towards the pursuers in the aggregate, and in many of the individual acts, amounts to a gross and culpable violation of his office and the duties effeiring thereto.” The pursuers went on to set forth in detail a dispute which took place with regard to the custody of the Acts of Parliament belonging to the council, which they alleged he kept in his private repositories, and refused to keep in the council chambers to be consulted by them, and to aver that while the provost was reading at a meeting of council a memorial and opinion of counsel on the matter, the defender repeatedly stated that it was untrue, and to charge the provost with falsely stating the facts in the memorial, and to say the council had not acted as gentlemen. They further averred that he had thwarted them in every way in a new water scheme for the burgh, and that he had charged the provost at a meeting of council with “boycotting” and persecution, and had held him up to ridicule and accused him of dishonesty, and had framed minutes of meeting in such a way as to insult the magistrates and council.

Page: 215↓

Articles 26, 27, and 28 of the pursuers' condescendence, which, as will be observed infra, the Court refused to send to proof, were to this effect. The pursuers alleged that they having resolved to let out their carting work to a contractor, the defender accepted an offer therefor, and that this contract led to a litigation as to whether the work let out embraced both commissioners' and town council work, or the latter only, which litigation caused loss and expense, which was due to negligence and unprofessional conduct on the defender's part, in not making the true contract they intended to make, clear, either in the contract or the council minutes. “This was gross carelessness and negligence, and a failure of duty on the part of the defender as town-clerk of the burgh.”

The pursuers pleaded—“(1) The defender's tenure of the said office of town-clerk not being ad vitam aut culpam, the pursuers are entitled to dismiss him from the said office on reasonable notice. (2) Assuming the defender's tenure to be ad vitam aut culpam, the pursuers are entitled in respect of his conduct and actings above set forth to terminate his appointment on reasonable notice.”

The defender pleaded—“(2) The pursuers' averments are not relevant, nor sufficient to support the conclusions of the action. (4) The defender's tenure of office of town-clerk being ad vitam aul culpam, the defender should be assoilzied. (5) The defender not having misconducted himself as alleged, he should be assoilzied.”

The Lord Ordinary, after a debate as to the relevancy of the action, allowed a proof.

“ Opinion.—As the authorities stand, the pursuers' plea that the office of town-clerk is not held ad vitam aut culpara cannot be sustained, and indeed though not given up, that plea was not maintained in argument before me. I think that the cases of Simpson v. Tod, 3 S. 150, and Parish v. Magistrates of Annan, 15 S. 107, 2 Sh. & M'L. 930, are distinctly against it, and that I am bound by these decisions.

But in rejecting the pursuers' first plea-in-law, I give no opinion that the holder of such an office is constitutionally independent of the magistrates and town council, and removable only on petition and complaint. All that I decide is, that he cannot be removed summarily, and without cause amounting in law to culpa, and in this case the conclusions of the summons show that the pursuers did not attempt to dismiss the defender without cause. Their resolution was—‘Considering that the business of the burgh cannot be satisfactorily and efficiently conducted so long as he remains in office.’

The question therefore is, whether the pursuers' allegations disclose a sufficient cause for dismissal? That it is within the competency of the magistrates and town council to dismiss their town-clerk upon sufficient cause I see no reason to doubt. think that the point was in substance decided in the case of Hastie v. Campbell, M. 13,132, 2 Pat. App. 277. That case related to the schoolmaster of a royal burgh. But the office of master of a public burgh school was not less a munus publicum than the office of town-clerk is, and I know of no authority that the schoolmaster's tenure of office was less secure.

The objection was taken in that case that the magistrates had no jurisdiction, because by the Act 1693, c. 22, schoolmasters are declared ‘liable to the trial, judgment, and censure of the presbytery of the bounds for their sufficiency, qualifications, and deportment in their office,’ and it was maintained, in reply to a contention that this Act applied only to parish schools, that Campbelton was not merely a burgh school but a parochial school also. The answer made was that the objection could go no further than to show a jurisdiction in the presbytery cumulative with that of the magistrates.

The Lords ‘repelled the objection to the competency of the magistrates and council,’ and in the House of Lords this judgment was not questioned.

But the authority of Lord Stair is still more distinct. In treating of mandate or commission he says—‘Amongst mandates are all offices which do ever imply a condition resolutive upon committing faults, but not such as are light faults, or of negligence, but they must be atrocious, at least of knowledge and importance. Upon this ground it was that the town of Edinburgh, having deposed their town-clerk from his office, which he had ad vitam, the sentence was sustained if the fault were found of the clerk's knowledge and of importance, and it was not enough that no hurt followed, and that he was willing to make it up.’—Stair, i. 12, 16.

The case of the town of Edinburgh, to which reference is here made, seems directly in point (M. 13,090).

But the power of the magistrates and town council is only to cognosce in the first instance the town-clerk's conduct, and to remove him upon sufficient cause. The question raised by this record is, whether sufficient cause can be shown against the defender?

What is culpa justifying the dismissal is, in the case of a public servant, a question of much difficulty. Stair says it must be atrocious and against knowledge. I agree, however, with the opinion expressed by Lord Deas in the case of Whyte v. The School Board of Haddington, that moral blame is not essential to it. If it appears that he has either wilfully or through gross negligence misconducted himself in a manner inconsistent with the public service required of him, I apprehend that is enough. If instead of doing his best to assist the magistrates and town council in their endeavours to discharge their public duty, a town-clerk is found flaunting his independence, and searching about for reasons to withstand and defeat the resolutions of the corporation, I think that it must be a question of circumstances and degree whether he is not in culpa warranting dismissal. For the public service must be attended to; and the magistrates and council must be allowed to regulate their proceedings, and to discharge their duties in their own way, so long as they do so faithfully and in a lawful manner. Incapacity, arising from want of temper, may be as fatal to the public service, and as inexcusable, as incapacity from intemperance in the use of stimulants; and the abuse of an office, such as that of the town-clerk, to the effect of preventing business being done, or lawful resolutions being carried out, may in some cases amount to malversation. I am far from saying that a town-clerk can never be justified in refusing to carry

Page: 216↓

out the wishes of the magistrates and town council. If he were ordered to destroy or tamper with the burgh records, or do anything which he considered against the law of the land, I should think he would be within his duty in refusing to give his services. But making difficulties where no difficulties need have been; charging the provost or other members of the council with being actuated by corrupt or unworthy motives in their public conduct; writing and reading in public minutes of a grossly offensive character about the provost or councillors; and contumacious disobedience of the lawful orders of the magistrates and town council—these are things which, if proved, would in my opinion amount to culpable misconduct in office justifying dismissal.

In the present case the record contains allegations—to some extent supported by admissions—of a kind not to be set aside without inquiry. They seem to shew, on the part of the defender, the assumption of an attitude towards the provost and town council as a body quite unbecoming the relation which subsisted between them, and rendering almost impossible the transaction of the business of the corporation. The original dispute about the collection of Acts of Parliament may have been superficially healed. Litigation at that time was avoided. But the quarrel which had occurred, ‘the words of high disdaining’ which seem to have been spoken, are perhaps admissible in explanation of the relations subsequently existing between the pursuers and the defender. It was contended for the defender that the allegations as to what passed at meetings of the police commissioners were irrelevant. This action relates solely to the defender in his capacity of town-clerk. But it appears from the pursuers' allegations, if true, that the defender had himself referred at the council board to his proceedings at the police commissioners' meetings for explanation of his charge of personal animosity and corrupt motives against the provost. In this way the alleged speech of the defender—‘I need not remind you how the provost, to serve his own ends, mixed me up in it,’ &c.—seems not irrelevant; and I cannot exclude it from consideration and inquiry. In like manner the terms of the minute set forth, and the defender's conduct in regard to the letter, are admissible evidence in the question as to the defender's fitness for the office of town-clerk. The conduct of the defender as to the burgess ticket may admit of some explanation, or may have been mere pettishness. But it is not easy to see how business could go on under such conditions as are alleged; and I think that as to this matter also there must be inquiry.

On the whole, my opinion is that there must be inquiry as to the alleged conduct of the defender; and that it is not possible at this stage to exclude from the inquiry any of the matters referred to on record.”

The defender reclaimed, and argued that the statements in the record were not sufficient to justify dismissal, and also that no averment should be admitted to proof relative to the defender's conduct as clerk to the police commissioners.