Scottish Court of Session Decisions

This was an action brought by (first) the Provost, Magistrates, and Councillors of the Royal Burgh of Rothesay, acting as such, and as Commissioners for the said burgh, and as local authority under the Roads and Bridges (Scotland) Acts, the Public Health (Scotland) Acts, and the Electric Lighting Acts, and (second) the Rothesay Harbour Trustees, acting under the Rothesay Harbour Act and Orders 1831 to 1898, against James Carse, writer, Rothesay, and William Alexander Stewart, writer, Rothesay, the trustee on the sequestrated estates of the said James Carse.

The conclusions of the summons were (1) for declarator that ( a) a resolution passed by the Provost, Magistrates, and Councillors at a meeting held on 21st January 1902, whereby they dismissed the defender from the office of town clerk of the burgh, and ( b) a resolution passed by the Provost, Magistrates, and Councillors, acting as such, and as Commissioners and Local Authority foresaid, and by the Rothesay Harbour Trustees, at a meeting held on 21st January 1902, whereby the defender James Carse was dismissed from the offices, appointments, and employments held by him under and in terms of a minute of agreement entered into between him and the pursuers, dated 13th November 1899, were valid and effectual resolutions; (2) for declarator that the defender James Carse had been duly and legally dismissed from the office of town clerk of the burgh and from the other appointments, and that his tenure of the office of town clerk and of the other appointments ceased and determined as at 21st January 1902, and that the pursuers were entitled to nominate and appoint another person or persons to the office of town clerk of the burgh, and to the other appointments as from said date, in room and stead of the defender James Carse, with all the powers, privileges, and duties, and with all the emoluments belonging to these offices; (3) for interdict against the defender James Carse acting as town clerk of the burgh, and also from acting in execution of any of the other appointments, from and after 21st January 1902, and from in any way discharging the duties of the office of town clerk of the burgh, or of the other appointments, or interfering therewith, or with the emoluments pertaining thereto; and (4) for decree ordaining the defender James Carse to deliver over to such person as might be nominated and appointed to the office of town clerk of the burgh, and to the other appointments, or to the interim town clerk, all books, records, minutes, writs, sums of money, documents, papers,

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and property of any description in his custody and possession as town clerk of the said burgh, or as holder of the other appointments.

The pursuers averred that the defender James Carse was on 26th September 1899 appointed town clerk, and was also appointed to the other offices connected with the various duties which the Town Council performed as Commissioners and Local Authority of the burgh, the terms and conditions of his appointment being specified in a minute of agreement between the pursuers and him dated 13th November 1899. They made various charges against him of drunkenness and neglect of duty, including failure to invest funds held by the Magistrates as trustees. They further stated—“(Cond. 16) During the year 1901 the pursuers became convinced that the interests of the Corporation and of the other public bodies with which the said defender was connected were being so seriously affected by the conduct of the defender that matters could not be allowed to remain as they were. A meeting of the pursuers was held in September 1901 to consider the situation. The charges made against the said defender were communicated to him, and the Provost remonstrated with him upon his conduct, but the defender's attitude was such as to satisfy the pursuers that stronger measures must be taken. Special meetings were subsequently held in October 1901, and it was ultimately resolved to obtain the opinion of counsel. A memorial was accordingly prepared and submitted to counsel, and counsel advised that upon the facts disclosed in the memorial the pursuers were entitled to dismiss the said defender from the office of town clerk, and from the other offices, appointments, and employments held by the defender under the said minute of agreement. The Provost, Magistrates, and Town Council of the said burgh accordingly, by the resolution of 21st January 1902, referred to in the first conclusion of the summons, dismissed the said defender from the office of town clerk, and the Provost, Magistrates, and Town Council of the said burgh, acting as such, and as Commissioners and Local Authority foresaid, and the Rothesay Harbour Trustees, by the resolution of 21st January 1902, also referred to in the first conclusion of the summons, dismissed the said defender from the offices, appointments, and employments held by him under the said minute of agreement. The pursuers maintain and aver that the said defender was guilty of such gross negligence and culpa during his tenure of office as to justify them in dismissing him from the office of town clerk of the said burgh, and from the said offices, appointments, and employments. The said defender, however, declines to recognise the right of the pursuers to dismiss him from the said offices, and the present action has been rendered necessary. The pursuers presented a petition to the First Division craving the Court to appoint an interim clerk pending the decision of the present action, and the Court appointed Mr R. D. Whyte to act ad interim. The defender, notwithstanding the said appointment, continued to act as town clerk, and obstructed Mr Whyte in performing the duties laid upon him by the Court. In order to prevent the defender from so acting the pursuers were compelled to present a note of suspension and interdict, upon which the Lord Ordinary on the Bills granted interim interdict as craved.”

The pursuers pleaded—“(1) The defender Carse having been guilty of gross negligence and culpa during his tenure of the office of town clerk and of the said offices, appointments, and employments, the pursuers were entitled to dismiss him, and decree should be pronounced in terms of the declaratory conclusions of the summons. (3) In respect of the said defender's conduct and actings as condescended on, the pursuers are entitled to decree of declarator, interdict, and delivery as concluded for, with expenses.”

The defender pleaded, inter alia, (1) The action is incompetent.

On 17th October 1902 the Lord Ordinary ( Kyllachy) repelled the first plea-in-law for the defender, and before answer allowed the parties a proof of their averments and the pursuers a conjunct probation.

The defender James Carse reclaimed, and argued—The action of the Magistrates in first dismissing the defender and then bringing an action to declare that the dismissal was valid was incompetent. The form of summons was based on a misconception of their rights. A town-clerk could not be dismissed at the pleasure of the town council subject to ratification by the Court in the event of the town clerk refusing to take his dismissal. The authority of the Court must be got before his dismissal— Simpson v. Tod, June 17, 1824, 3 S. 150; Farish v. Magistrates of Annan, November 22, 1836, 15 S. 107. The defender not having been competently dismissed, he was still entitled to his salary. The Court could not act retrospectively and confirm an incompetent resolution. The office of a townclerk was a munus publicum and the holder could not be removed summarily from his office without notice or inquiry. The pursuers relied upon the analogy of the case of a burgh schoolmaster, but the office of a burgh schoolmaster was not a munus publicum, and the master did not hold his office ad vitam aut culpam— Mitchell v. Elgin School Board, June 1, 1883, 10 R. 982, 20 S.L.R. 608.

Argued for the respondents—The objection taken was technical and had no foundation in the law of Scotland. The Magistrates were not entitled to dismiss the defender except for some just and reasonable cause, but they were entitled to dismiss if they thought culpa had been made out against him— Thomson v. Town of Edinburgh, February 14, 1665, M. 13,090. The same rule had been applied in the case of a burgh schoolmaster— Magistrates of Montrose v. Strachan, January 18, 1710, M. 13,118; Campbell v. Hastie, April 11, 1772, 2 Paton App. 277; and a kirk-session clerk— Harvie v. Bogle, July 27, 1756, M. 13,126. The cases

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of town-clerk and burgh schoolmaster had been held by Lord Lee to be analogous in Provost, &c. of North Berwick v. Lyle, November 19, 1885, 23 S.L.R. 214. There was no authority in the law of Scotland that the holder of a munus publicum was independent of his own employers. Even if it were the law that the authority of the Court was required in order to validate the dismissal of a town-clerk, that authority was asked for in the present action.

At advising—