Scottish Court of Session Decisions

The Poor Law Amendment (Scotland) Act 1845 (8 and 9 Vict. cap. 83), section 66, enacts—“In all cases in which poorhouses shall be erected, or enlarged or altered, under the provisions of this Act, there shall be proper and sufficient arrangements made for dispensing and supplying medicines to the sick poor, under such regulations as the parochial board shall make and the Board of Supervision approve; and there shall be provided by the parochial board proper medical attendance for the inmates of every such poorhouse, and for that purpose it shall be lawful for the parochial board to nominate and appoint a properly qualified medical man, who shall give regular attendance at such poorhouse, and to fix a reasonable remuneration to be paid to him by such parochial board: Provided always that if it shall appear to the Board of Supervision that such medical man is unfit or incompetent, or neglects his duty, it shall be lawful for the Board of Supervision to suspend or remove such medical man from his appointment and attendance.”

The Parish Councils of the Parishes of Dundonald, Galston, Kilwinning, and West Kilbride, being four of the eighteen Parish Councils which formed the constituent members of “the Cunninghame Combination or Union Poorhouse,” raised an action against Charles Torrance and others, being the whole members of the House Committee or Board of Management of the said Combination Poorhouse, against its secretary, and also against the remaining fourteen Parish Councils. The pursuers sought declarator—“(1) That the said Board has no power under the said contract and agreement to combine the offices of house governor and medical officer of the said poorhouse, by appointing the same person to hold both of the said offices; and (2) that the said Board has no power to dismiss the medical officer of the said poorhouse without the sanction of the Local Government Board for Scotland and the General Board of Lunacy for Scotland previously had and obtained.” Conclusions followed for reduction “if need be” of minutes of the house committee purporting to record resolutions to combine these offices and to dismiss from his appointment Charles Auld, M. D., medical officer of the said poorhouse, and interdict was sought against the carrying out of these resolutions.

The contract and agreement between the contracting parishes for the erection and maintenance of the said Combination Poorhouse narrated the powers conferred on them by sections 60 and 61 of the Poor Law (Scotland) Amendment Act 1845, and, inter alia, provided—“ Fourth. A House Committee or Board of Management shall be, and is hereby established, for the superintendence, conducting, management, and control of the affairs of the poorhouse, and all matters and things connected therewith.… Eleventh. The House Committee or Board of Management shall, after the house is open and ready for the reception of paupers, or at the first of its meetings thereafter, have power, and is hereby authorised and directed, to appoint a house governor, a matron, and a porter, with such assistants as may be necessary for the establishment, and who shall all be bound to reside within the said poorhouse or buildings in connection therewith, within the bounds of the land on which the said poorhouse is erected. The House Committee shall also appoint a surgeon or other medical attendant, a chaplain, a teacher, or chaplain and teacher, with assistants if required, a treasurer, a secretary, or treasurer and secretary, and any other officers, assistants, or officials that may be considered or found necessary, but who shall not necessarily be required to be resident in the poorhouse or buildings in connection therewith, within the bounds aforesaid; and the House Committee, if it see fit, may appoint the same person to the offices of governor and secretary, and these for such periods and on such terms as may be

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arranged, and to remove all such officials, or any one or more of them, from time to time at the discretion of the said House Committee or Board of Management, and without being bound to assign any reason for such removals, and to supply all vacancies that may occur from time to time in any of the aforesaid offices, either by death, resignation, removal, or any other cause, and to prescribe the duties and make rules for the government and guidance of the said several officials in their several departments, in terms of the foresaid statute, and subject always to the approbation of the foresaid Board of Supervision.… Eighteenth. It is further agreed that in all cases where the sanction of the Board of Supervision is, under the foresaid statute, required to any act or thing in connection with the poorhouse, or with the working of the said combination or union, or with the management or maintenance of the officials thereof, and inmates therein, such sanction, whether specially provided for or not specially provided for or referred to herein, shall always be previously had and obtained before the act or thing contemplated is commenced.”

On 12th March 1908 the Lord Ordinary ( Dundas) assoilzied the defenders.

Opinion.—[ After narrating the conclusions of the action]—Upon the first of the two questions thus raised, I am of opinion that the defenders are entitled to succeed. I can find nothing in the Poor Law Act or in the agreement to prevent the House Committee from combining, if so advised, in one person the offices of house governor and medical officer. The fourth article or ‘rule’ of the agreement provides for the constitution of the House Committee ‘for the superintendence, conducting, management, and control of the affairs of the Poorhouse, and all matters and things connected therewith,’ and confers upon it power, inter alia, ‘to act in all matters falling under or proper to the province, and subject to the administration of the House Committee or Board of Management.’ By the eleventh rule more specific powers are conferred upon the House Committee as to the appointment of the various officials necessary for the establishment. The pursuers' counsel pointed out that in some instances power is expressly given to combine offices, viz., ‘a chaplain, a teacher, or a chaplain and teacher … a treasurer, a secretary, or a treasurer and secretary … and the House Committee, if it see fit, may appoint the same person to the offices of governor and secretary’; and they argued that the expression of such power in certain cases negatived by implication its existence in any others, and in particular as regards the offices of governor and medical officer. My opinion is adverse to this argument as matter of construction; and I think that the maxim Expressio unius est exclusio alterius, though sound enough within its proper limits, is one which can easily be pushed too far.

The second question in the case, viz., as to the House Committee's power to dismiss the medical officer without the sanction of the two authorities already referred to previously had and obtained, is, in my judgment, attended with more difficulty than that with which I have just dealt. But in regard to it also my opinion is in favour of the defenders, and against the pursuers. The eleventh rule, already referred to, expressly gives the House Committee power ‘to remove all such officials or any one or more of them from time to time at the discretion of the said House Committee or Board of Management, and without being bound to assign any reason for such removals, and to supply all vacancies that may occur from time to time in any of the aforesaid offices, either by death, resignation, removal, or any other cause.’ But it was suggested that these powers—and indeed I apprehend the whole preceding portion of the eleventh rule—are controlled by the words which occur shortly after, viz., ‘and subject always to the approbation of the foresaid Board of Supervision.’ I do not agree with this view. I think the words just quoted relate exclusively to the power conferred (immediately before their occurrence) ‘to prescribe the duties and make rules for the government and guidance of the said several officials in their several departments, in terms of the foresaid statute,’ i.e., the Poor Law Act (Scotland) 1845, which by section 64 (expressly referred to in the same part of the said eleventh rule) ordains parochial boards to frame rules and regulations for the management of the poorhouse, which are to be submitted to the Board of Supervision ‘for approval.’ This is, I think, the proper construction of the eleventh rule, although it is not very artistically framed; and my impression is confirmed by looking at the twelfth rule, which gives power to the Visiting Committee of the Board ‘to suspend any one or more of the officials to be appointed under article eleventh, until the opinion of the House Committee or Board of Management can be obtained on the cause of such suspension,’ But the pursuers' counsel further relied upon the eighteenth rule, as importing by implication into the language of the eleventh rule, in regard to the House Committee's power of dismissal, section 66 of the Poor Law (Scotland) Act 1845. The argument does not, in my opinion, advance the pursuers' case; for that section, as I read it, merely confers upon the Board of Supervision power in certain cases to suspend or remove a medical man whom the parochial board had appointed in a poorhouse, but does not override or negative the power of that board to dismiss, if they see fit, the man whom they themselves appointed. I should say that my attention was called to the view expressed by the Secretary to the Local Government Board in one of the letters produced, that ‘the medical officer of a poorhouse is appointed under statute, and cannot be dismissed at the will and pleasure of the directors of the poorhouse’—and to the reference he makes to a departmental report in 1904. In that report the statement is made that ‘it is considered that medical officers of poorhouses have the same tenure of office as inspectors of poor; that is, they

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can be dismissed only by the Local Government Board.’ The authority for that statement is noted as sections 56 and 66 of the Poor Law Act 1845, and the Old Monkland Case, 1880, 7 R. 469. I am, with the greatest respect, unable to concur in the views thus indicated. The cases about inspectors—of which Clark, 1873, 1 R. 261, is one of the most important—seem to me scarcely to warrant the statement in question; and I observe that the departmental report, quoting from an earlier report in 1895–96, announces that ‘the claim’— i.e., that such medical officers should not be removable without the sanction of the Local Government Board—‘has been frequently preferred by the representatives of the parochial medical officers, and clauses have been introduced into Bills with the view of giving effect to the claim, but from one cause or other the Bills have failed to pass.’ This account of the matter accords with the view which I take of section 66, as it stands, and the construction I am disposed to put upon it; and seems to infer that, if medical officers of poorhouses are to be placed in the position desired, that end must be achieved by legislation. For the reasons I have now expressed, I do not think that there is any need for the House Committee to obtain the sanction of the Local Government Board as a condition-precedent to the dismissal of the medical officer. As regards the alleged necessity for obtaining the antecedent sanction of the General Board of Lunacy, it seems enough to observe (1) that the eighteenth rule, referring as it does only to the sanction of the Board of Supervision under the Poor Law Act of 1845, cannot, so far as I see, aid the pursuers upon the point in question; and (2) that I am unable to find upon the record any averments of fact, by which the case is brought in any way within the scope of the third section of the Lunacy (Scotland) Act 1862, or the rules and conditions prescribed thereunder, particularly Rule XVI.

“For these reasons, I think the defenders are entitled to succeed in the action. I propose to repel the whole pleas-in-law stated for the pursuers, and to grant decree of absolvitor.”

The pursuers reclaimed, but, with the exception of the Parish Council of the parish of Kilwinning, abandoned the reclaiming note.

Argued for the reclaimers—(1) The defenders were not entitled to combine the offices of house governor and medical officer. It was true that article 4 gave general powers of management to the House Committee, but article 11 provided for both a house governor and a medical officer, and although it carefully specified that the offices of chaplain and teacher might be combined, and also those of house governor and secretary, there was no such provision for combining the offices of house governor and medical officer. The maxim expressiounites est exclusio alterius applied. (2) Moreover, the combination was not one which would work satisfactorily. Although the house governor was dismissible by the House Committee, the medical officer was only dismissible by the Local Government Board, the successors of the Board of Supervision—Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83) sec. 66. By that section the medical officer of a poorhouse was put in the same position as regards dismissal as was the inspector of poor by sections 32 and 56. Though it had not been actually decided that an inspector of poor could only be dismissed by the Local Government Board, yet there were expressions of opinion to that effect in Board of Supervision v. Parish of Dull, June 9, 1855, 17 D. 827, Lord President M'Neill at 831 (the medical officer there referred to was appointed under section 69, not under section 66); Clark v. Board of Supervision, December 10, 1873, 1 R. 261, Lord Shand at 263, 11 S.L.R. 121, and it was assumed in the judgment of Lord President Inglis in Board of Supervision v. Parochial Board of Old Monkland, January 17, 1880, 7 R. 469, 17 S.L.R. 297. Parishes could not contract contrary to the provisions of the Act, and here indeed, by section 18, the sanction of the Local Government Board was provided for. (3) As to their title to object to the combination of the offices, they were entitled to the staff they had contracted for. As to their title to object to the dismissal of Dr Auld, they were asking for the enforcement of the 18th article, providing that when antecedent authority was required it should be obtained.

Argued for the defenders and respondents—(1) Clause 4 was the master clause of the contract; it conferred uncontrolled powers of management except when the contrary was expressly stated. There was no reason the two offices should not be combined. The maxim referred to did not here apply. (2) The Poor Law Amendment (Scotland) Act 1845, sec. 66, conferred a concurrent right of dismissal on the Local Government Board; it did not prevent the ordinary rule operating that the person who had the power to appoint had also the power to dismiss. (3) The reclaimers had no title to object to the dismissal of Dr Auld. Neither Dr Auld nor the Local Government Board were parties to the case, and there was nothing to show that they did not acquiesce in what was done. A medical officer was not in the same position as a town-clerk, who could not be dismissed without process of law— Rothesay Magistrates v. Carse, January 27, 1903, 5 F. 383, 40 S.L.R. 314.

At advising—