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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Seaton v. Parish Council of Arbroath and St Vigeans [1896] ScotLR 33_583 (28 May 1896)
URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0583.html
Cite as: [1896] ScotLR 33_583, [1896] SLR 33_583
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SCOTTISH_SLR_Court_of_Session
Page: 583↓
Court of Session Inner House First Division.
Sheriff of Forfarshire.
v.
Facts:
An Order pronounced by the Secretary for Scotland in terms of the Local Government (Scotland) Act 1889, sec. 51, and the Local Government (Scotland) Act 1894, sec. 46, uniting two parishes, and declaring that the officers and servants of the old parishes shall be transferred to the parish council of the new parish, is valid, both under the particular powers conferred by the Act of 1889, sec. 51 ( f) read in conjunction with sec. 51 of the Act of 1894, and under the general powers conferred by sec. 51 ( g) of the Act of 1889; and consequently the inspectors of poor of the pre-existing parishes continue to be the officers and servants of the parish council of the new parish.
Henry George Seaton raised an action in the Sheriff Court of Forfarshire against the Parish Council of the Parish of Arbroath and St Vigeans concluding for payment of £35, being three months' salary due to him.
The facts of the case were as follows:—In July 1889 the pursuer was elected inspector of poor and collector of poor and school rates by the Arbroath Parochial Board. He continued to discharge the duties of both offices down to 15th May 1895, when the Local Government (Scotland) Act 1894 came into effect. At the instance of the Town Council of Arbroath and other bodies, and after an inquiry had been held, the Secretary for Scotland, on 11th July 1895, pronounced an order under sec. 46 of the said Act uniting the parishes of Arbroath and St Vigeans. This order contained, inter alia, the following paragraph:—“(2) The Parish Council of Arbroath and the Parish Council of the now existing parish of St Vigeans shall cease and determine, and their whole powers, rights, duties, property, liabilities, debts, officers, and servants shall be transferred to the Parish Council of the parish constituted by this order.”
On 16th July 1895 the defenders intimated to the pursuer that another person, the Inspector of St Vigeans, had been appointed inspector and collector for the united parishes, and expressed regret that the pursuer would be necessarily deprived of office. The pursuer replied by a statement of what he conceived to be his rights, and received in answer an excerpt from a minute of a special committee of the united Parish Council to this effect:—“The committee unanimously resolved to recommend that Mr Seaton be allowed his salary in full up to the 15th day of August curt., both as inspector of poor and collector of poor rates, and that a sum of £250 be paid to him in addition as in full of compensation and all other claims, whether legal or equitable.” This offer the pursuer declined to accept; and the defenders having refused to pay him his salary from 15th August, he raised the present action.
The pursuer pleaded—“(1) The pursuer having as at the 15th day of May 1895 held office as inspector of poor for the parish of Arbroath and collector of poor and school rates, became by operation of section 50 of the Local Government (Scotland) Act 1894, an officer of the parish council of said parish. (2) Under section 51, sub-section 1, the pursuer and others similarly placed are declared to hold their offices by the same tenure, and upon the same terms and conditions ‘as if this Act had not passed, and while performing the same duties shall receive not less salaries or remuneration, and be entitled to not less pensions (if any) than they would have received or been entitled to if this Act had not passed.’.… (7) The defenders as coming in room and place of the parochial board of the parish of Arbroath, and exercising the rating and other powers formerly exercised by the said parochial board, are liable in all obligations prestable against said board by all interested, and particularly to the pursuer for the sums sued for.”
The defenders pleaded:—“(3) The pursuer's claim, if he any has, against the defenders, being one for compensation and not salary, the defenders should be assoilzied (5) The pursuer's contract of service having been terminated by the combined operation of the said Order and the Poor Law Act, no salary is due to the pursuer.”
The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), sec. 51, enacts—“On the representation of a county council or of a town council, the Secretary for Scotland may at any time after the expiry of the powers of the Boundary Commissioners by order provide for all or any of the following things:—… ( d) for uniting several parishes or parts of parishes into one parish; …( f) for the proper adjustment and distribution of the powers, property, liabilities, debts, officers, and servants of any local authority, consequential on any consolidation, alteration of boundaries, or other act done in pursuance of this section; and ( g) generally for doing any matter or thing whatever, whether similar or not to those above mentioned, which may be required or be expedient for the proper carrying into effect the purposes of this Act and the settlement of local differences.”
The Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58), sec. 46, enacts that “an order of the Secretary for Scotland under section fifty-one of the principal Act … for uniting several parishes or parts of parishes into one parish by the
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creation of a new parish or otherwise … shall have effect for all purposes whether county council, justice, sheriff, militia, parochial board, parish council, schoolboard, local authority, or other save as hereinafter provided.… An order of the Secretary for Scotland under the powers conferred by section 51 of the principal Act, or this section, may, without prejudice to the generality of the aforesaid powers, provide for all or any of the matters specified in sub-sec. (6) of sec. 49 of the principal Act.” Section 50 of the same statute enacts that all existing officers and servants of a parochial board shall after the 15th May 1895 become the officers and servants of the parish council.
Section 51 (1) enacts that “the officers and servants of any authority who hold office at the passing of this Act, and who by or in pursuance of this Act become officers ana servants of a parish council, shall hold their offices by the same tenure and upon the same terms and conditions as if this Act had not passed, and while performing the same duties shall receive not less salaries or remuneration and be entitled to not less pensions (if any) than they would have received or been entitled to if this Act had not passed.”
On 22nd January 1896 the Sheriff-Substitute at Forfar ( Robertson) found that the action of the defenders in depriving the pursuer of his office of Inspector of Poor of the Parish of Arbroath was ultra vires and illegal; that the salary sued for was due; and therefore decerned against the defenders in terms of the conclusions of the summons.
The defenders appealed to the Court of Session, and argued—(1) The amalgamation of the two parishes left no inspectors in existence, and consequently the Order of the Secretary for Scotland did not transfer the pursuer to the united parish. If it had, there would have been two inspectors jointly for one parish, which was illegal— Board of Supervision v. Glasgow Parochial Board, February 1, 1850, 12 D. 627. (2) The Parish Council of the united parish was entitled to choose the one inspector and to reject the other. Though the Poor Law Act 1845 (8 and 9 Vict. cap. 83), sec. 56, conferred the power of dismissing inspectors upon the Board of Supervision in certain cases, it contained nothing which took away the right of the parochial board, which appointed, to dismiss.— Board of Supervision v. Parish of Dull, June 9, 1855, 17 D. 827; Clark v. Board of Supervision, December 10, 1873, 1 R. 261, per Lord Shand, Ordinary; and Board of Supervision v. Parish of Old Monkland, January 17, 1880, 7 R. 469, referred to.
Counsel for the respondent was not called upon.
Lord President—It seems to me that the true ground of judgment in this case is to be found in the order by the Secretary for Scotland uniting the parishes of Arbroath and St Vigeans. I do not doubt that all that was done under this order, so far as it relates to the present question, was validly done, and within the powers of the Secretary for Scotland. The second head of the order in plain terms declares that the whole powers, &c., of the two Parish Councils shall be transferred to the Parish Council of the new parish. Now, applying those general words to the case of the person in question, it is past doubt that this gentleman was an officer and servant of the old parish of Arbroath, and if so he is transferred to the new parish, and becomes one of its servants. What duties then has he to perform, and what rights has he in that quality? They can be none other than those he was performing and enjoying under his former master, and section 51 of the Act of 1894 seems to me directly to apply, because, speaking distinctly and solely of those officers who held office at the time of the passing of the Act, it says—“Nothing done by this Act,” or done in pursuance of this Act, “shall alter the rights and duties of those officers.” Accordingly, the order of the Secretary for Scotland, not in so many words, but in effect, did distribute the duties of the inspectors who were transferred to the new parish, because by transferring them and declaring them to he servants of the new board, it defined their duties by the necessary statutory effect of that clause. It defined their duties as being those which had been done before. There is nothing at all repugnant in that conclusion, because it is manifestly entirely inappropriate to say that there is any illegality in a parochial board having two inspectors of poor. All that the decisions which we were referred to say is, that it would be illegal for a parochial board administering the Act of 1845 to appoint two inspectors, except under the limitations stated under section 55; but it never did, and never possibly could, make it impossible for the Legislature to authorise a competent authority, charged with the duty of effecting a workable fusion of two parishes, to continue the services of two existing inspectors. That is what has been done here, and accordingly, in my opinion, the order for the Secretary for Scotland can be supported on the ground that it effects the distribution of the offices; but, further, the very general words in the Act of 1889, which are incorporated and referred to in the subsequent statute, would support what has been done, apart from that precise definition of powers. Now, if I am right in this view, we are taken clean outside the question about the power of a parochial board to dismiss an inspector of poor on other grounds than his fault, and for this reason that we have not here any arrogation by the new board of such a power. They have not considered whether this person should be dismissed from the office he holds. On the contrary, they have assumed, contrary to the law of the case, that the office was abolished. All that they have done is to assume that the office he held had gone by the board, and that they were debarred from doing anything else than to appoint to the office a sole inspector for the combined parishes.
Page: 585↓
The Court affirmed the interlocutor of the Sheriff-Substitute.
Counsel for Pursuer— W. Campbell— A. Orr Deas. Agents— Duncan Smith & Maclaren, S.S.C.
Counsel for Defenders— Sol.-Gen. Dickson— Clyde. Agents— Webster, Will, & Ritchie, S.S.C.