Scottish Court of Session Decisions

By section 2 of the Police (Scotland) Act 1890 (53 and 54 Vict. cap. 67) it is enacted—“(1) If a constable dies whilst in a police force from the effect of an injury received in the execution of his duty without his own default, the police authority shall grant a pension to his widow and allowances to his children; (2) If a constable dies whilst in a police force from any other cause, the police authority may, if they think fit, grant gratuities to his widow and children or any of them …; (4) If a constable to whom a pension has been granted dies within twelve months after the grant of the pension, the police authority may, if they think fit, grant gratuities to his widow or children or any of them.”

The first schedule, part 3 (8), of the said Act provides—“The allowance to a child shall not continue after the child attains the age of fifteen years.”

Alexander Campbell, inspector in the Glasgow Police Force, retired on 1st October 1894 from the force under the provisions of the Police (Scotland) Act 1890, and in respect of his length of service was entitled to receive a pension of £56, 3s. 7d. per annum.

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He died on 3rd November 1894.

After his death his two sons Lauchlan Campbell, a clerk, and Niel Campbell, a surgeon in Glasgow, who had both attained majority, applied to the Glasgow Police Commissioners for the grant of a gratuity under section 2, sub-section 4, of the Act, in respect of the death of their father within twelve months from the date of his retirement from the force.

The Watching and Lighting Committee of the Police Commissioners recommended that the treasurer should be authorised to pay to Lauchlan and Niel Campbell £275, 14s. 5d. as a gratuity under the Act, and this recommendation was approved by the Police Commissioners at a fortnightly statutory meeting.

On 20th November the clerk to the Commissioners wrote to Lauchlan and Niel Campbell intimating that the Commissioners had fixed the allowance at the above-mentioned sum, and that the treasurer had been authorised to pay it, and on the 21st the treasurer wrote in similar terms, saying that he would hand them a cheque for the amount on their calling either the next day or the day following to sign the formal receipt.

Lauchlan and Niel Campbell accordingly called on 22nd November, and after banking hours on that day were handed by the treasurer to the Police Commissioners a cheque for £275, 14s. 5d. For this sum they signed a receipt.

On the same day the treasurer wrote to the bank on whom the cheque was drawn, countermanding payment of the cheque, and when the cheque was presented on behalf of Lauchlan and Niel Campbell on the following day, payment was refused.

Lauchlan and Niel Campbell accordingly raised an action in the Sheriff Court at Glasgow against the Glasgow Police Commissioners for payment of the amount of the cheque, viz., £275, 14s. 5d.

The defenders made the following statements:—“(Stat. 9) Immediately after handing the cheque to the pursuer Niel Campbell, the defenders’ treasurer questioned whether any gratuity under the Police (Scotland) Act 1890 could be competently granted to a child over the age of fifteen years, and consequently whether the pursuers were entitled to receive any gratuity under that Act. Thereupon he adjusted with the said Niel Campbell the terms of the following letter to the Under Secretary for Scotland … ‘Sir,—Police (Scotland) Act 1890.—A question has arisen in connection with a claim under the above Act as to the meaning that is to be attached to the word “children” in section 2 (2 and 4). Kindly say whether there is any limitation as to the age beyond which you would disallow a gratuity granted under either of these sub-sections to the child of a deceased officer.’ … (Stat. 10) Pending the determination of that question by the Under Secretary for Scotland, the defenders’ treasuer suggested to the pursuer Niel Campbell that he should hand him back the cheque, which that pursuer declined to do. (Stat. 11) Although declining to hand back the cheque, the pursuer Niel Campbell undertook to said treasurer, on behalf of himself and the other pursuer, not to cash or attempt to cash the cheque in question until a reply had been received from the Under Secretary for Scotland to the above-quoted letter. (Stat. 12) To keep matters open the defenders’ treasurer thereon wrote the Clydesdale Banking Company, on whom the cheque was drawn, countermanding payment of the cheque. (Stat. 13) In disregard of the undertaking before referred to, the pursuers, at the earliest possible moment, namely, at or about ten o'clock on the morning of the 23rd November 1894, caused the said cheque to be, on their behalf, presented for payment at the Clydesdale Bank, Limited, upon which bank the cheque was drawn, by a clerk or porter from another bank, believed to be a bank with which the pursuers, or one or other of them, dealt. Payment of the cheque was, however, in respect of the aforesaid countermand, refused. (Stat. 14) Thereafter the pursuers that day, about 10·30 o'clock a.m., called upon the defenders’ clerk, and to him again undertook not to cash or attempt to cash the cheque, till the opinion of the Under Secretary for Scotland had been obtained on the question raised. (Stat. 15) On 28th November 1894 the Under Secretary for Scotland wrote the defenders’ treasurer that, ‘Although the terms of the Act are by no means clear, the Secretary for Scotland is of opinion, as advised, that a gratuity under the Police (Scotland) Act, 1890, should not be awarded to any child who exceeds the age of fifteen years.’ (Stat. 16) The Sub-Committee on Police (Scotland) Act 1890, appointed by the defenders on 19th November 1894, thereafter, on 30th November 1894, having reconsidered the whole matter, and having regard to the fact, then made known to them for the first time, that the applicants for the gratuity in question were two men, one of whom was and is a medical practitioner in the city, and the other was and is in an apparently good mercantile position, and that, in view of the opinion of the Secretary for Scotland above referred to, they were beyond the scope of the said Act, resolved to recommend that the Commissioners, in the exercise of the discretion conferred upon them by section 2 (4) of the said Act, and of the whole circumstances of the case, decline to grant any gratuity, and that the minute of the previous meeting of 19th November 1894 granting the gratuity, be accordingly cancelled and recalled. (Stat. 17) On the same date (30th November 1894) the Watching and Lighting Committee approved of and adopted the minute of the Sub-Committee above referred to. (Stat. 18) On 3rd December 1894 the defenders, at their fortnightly statutory meeting, approved of and adopted the recommendation above referred to, and in the exercise of the discretion conferred upon them by said Police (Scotland) Act, 1890, declined to grant any gratuity to the pursuers, and cancelled and recalled the said minute of their meeting of 16th November 1894.”

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The pursuers denied that they had ever undertaken not to cash the cheque.

The defenders pleaded—“(2) The said cheque having been a gratuitous and not an onerous cheque, the defenders were entitled to countermand payment thereof. (3) The defenders having effectually countermanded payment of the cheque in question, the action should be dismissed. (5) The defenders having, in the exercise of the discretion conferred upon them, declined to grant any gratuity to the pursuers, the action should be dismissed. (6) The decision of the defenders in declining to grant any gratuity to the pursuers being by the Police (Scotland) Act 1800 declared to be final, decree of absolvitor should be granted.”

On 31st January 1895 the Sheriff-Substitute ( Spens) allowed a proof.

“Note.—I do not feel disposed to decide this case without inquiry into the facts, so far as not admitted. I can see that arguments may be raised, on the one hand, that the treasurer had no power to refuse to hand over the cheque, and that, having handed it over, he bad no power to stop its payment. On the other hand, it may be argued, if the facts are, as averred by the defenders, that the cheque was handed over on a certain distinct footing, and the pursuers were in mala fide in attempting to cash it in violation of the arrangement come to, and that this being so the cheque was properly stopped. It may also be a question whether the Commissioners have power to rescind their previous resolution. In view, therefore, of the questions which I see may be raised, I would prefer to have an exact knowledge of the facts before deciding any of them.”

The defenders appealed to the Sheriff ( Berry), who on 6th April 1895 recalled the interlocutor appealed against and assoilzied the defenders.

“Note.—… It seems to me that there is no serious dispute as to the facts which are material to the decision of the case.

The defenders had on 19th November resolved to grant a gratuity to the pursuers, and as authorised by their minute to that effect, their treasurer had intimated the resolution to the pursuers, and on 22nd November handed to them a cheque for the amount. On seeing them to be grown men he seems to have entertained doubts whether they were persons to whom, as children of a deceased constable, the Act contemplated that a gratuity should be granted, and he took upon himself to stop payment of the cheque while he communicated with the Under-Secretary for Scotland on the subject. After the answer of the Under-Secretary was received, the Commissioners resolved to cancel and recal their previous resolution, and caused it to be intimated to the pursuers that they declined to grant to them any gratuity under the Act. All the minutes of the Commissioners or of their committees relating to the subject have, as was admitted at the bar, been produced in process.

I do not think it likely that, if a proof were allowed, it would show that the treasurer when he stopped payment of the cheque had any authority to do so, and I am prepared to deal with the case on the footing that he had not any such authority. His countermand of payment, however, was subsequently ratified by the Commissioners when they recalled their previous resolution, and declined to grant a gratuity to the pursuers.

The question may no doubt be raised as to whether the Commissioners had power to rescind their previous resolution, but that seems to me to be a question of law which a proof would not assist in solving.

In my opinion the Commissioners had a right on further consideration to recal their original resolution. They are empowered by the Act to grant a gratuity ‘if they think fit.’ The grant, if given, is of a ‘gratuity,’ and it seems to me impossible to hold, as was argued before me, that the pursuers are in the position of onerous holders of the cheque on which they sue. No value for it was given by them, and the service of their father in the police force, while entitling him to a life pension, gave neither to him nor to any of his family a claim as of right to any payment from the Commissioners after the date of his death. Any such payment was of the nature of a gratuity or donation, which it rested in the defenders’ discretion to give or to withhold. The sum represented by the cheque being therefore a pure donation the defenders had, as long as the cheque remained uncashed, a right, in my opinion, to countermand payment and revoke the donation, and their ratification of the treasurer's act operated as an effectual countermand. My conclusion is that the pursuers are not entitled to succeed in this action.”

The pursuers appealed, and argued—The Sheriff's judgment was wrong. He had been misled by the eighth sub-section of part 3 of Schedule I. That only applied to allowances to children granted in terms of sub-section (1) of section 2, which were quite distinct from gratuities granted under subsection (2). It was reasonable that in some cases a gratuity should be granted to children of a deceased constable, although their age might be over fifteen. The gratuity was destined to be a sort of compensation for a pension which had not been enjoyed. In this case the constable had died within a month of his receiving the pension, and it was reasonable that his children should receive some compensation. The magistrates having resolved to grant the gratuity, the matter was disposed of and the cheque must be paid.

Argued for the defenders—It was ultra vires of the Police Commissioners to grant this pension. The Police Commissioners were in the position of trustees, and the Government or any member of the public or of the police force was entitled to object to their acting beyond their powers under the Act. The limitation in the schedule in regard to allowances must be held to apply to gratuities. The Police Commissioners

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were unable under the Act to grant allowances to children over fifteen years of age of constables dying from injuries received in the execution of their duties, and it was impossible that the Legislature could intend to allow the Commissioners to give gratuities to grown—up children of a retired constable who had died a natural death.

At advising—