Scottish Court of Session Decisions

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50) enacts—Section 51—“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 …, and any parish so formed by a union of parishes or parts of parishes … shall for all purpose be deemed to be 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.”

The Local Government (Scotland) Act 1894 (57 and 58 Vict. cap. 58) enacts—Section 51—“(1) 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 and servants of a parish council (in this Act referred to as existing officers), 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.… (2) Subject to any general regulations of the Board, a parish council may distribute the business to be performed by existing officers, and may combine their duties in such manner as the council may think expedient, and every existing officer shall perform such duties in relation to such business as may be directed by the council: Provided that if any existing inspector of poor is aggrieved by such distribution of business or by the imposition or withdrawal of any duties, he may, within one month after the date of any resolution of the council distributing such business or imposing or withdrawing such duties, appeal to the Board, whose decision shall be final.”

Henry George Seaton, inspector of poor and collector for the parish of Arbroath, pursuer, raised an action against the Parish Council of the Parish of Arbroath and St Vigeans, defenders, and William Bennett Gardner, Arbroath, in which he, inter alia, concluded for declarator—“( First) That the pursuer on the amalgamation of the parish of Arbroath and the parish of St Vigeans … became jointly with Robert Stuart (previously inspector of poor for the parish of St Vigeans) inspector of poor for the parish of Arbroath and St Vigeans; ( second) that on the resignation of the said Robert Stuart from the office of inspector of poor for said parish of Arbroath and St Vigeans on 10th December 1918 the pursuer became sole inspector of poor for the said parish of Arbroath and St Vigeans …; ( third) that the pretended appointment of Henry Myles as acting inspector of poor of the said parish of Arbroath and St Vigeans made by the defenders … on 10th December 1918 was illegal, invalid, and ultra vires; ( fourth) that the pretended appointment of William Bennet Gardner as inspector of poor for the said parish of Arbroath and St Vigeans, made by the defenders on 4th May 1920, was

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and is illegal, invalid, and ultra vires.” The summons also contained (fifth) a conclusion for reduction of the minutes of meeting at which the appointments were made; (sixth) a conclusion for declarator that the pursuer was inspector of poor of the said parish of Arbroath and St Vigeans, and as such entitled to the emoluments of the office, and a petitory conclusion for £116, 7s. 10d.

The pursuer averred, inter alia—“(Cond. 2) At the date of the coming into operation of the Local Government (Scotland) Act 1894 on 15th May 1895 pursuer held the offices and discharged the duties of inspector of poor and collector of poor and school rates for the parish of Arbroath. On 11th July 1895, in terms of said Act, the Secretary for Scotland issued an Order uniting the parish of Arbroath and the parish of St Vigeans into one parish to be called the parish of Arbroath and St Vigeans. The Council of the united parishes thereafter appointed Mr Robert Stuart, who had been inspector of poor for the parish of St Vigeans, to be an inspector for the combined parishes. Since the amalgamation of said parishes the pursuer has performed the duties of collector for the united parish under and in virtue of the 51st section of the Local Government (Scotland) Act 1894. With reference to the averments in answer it is admitted that the pursuer appealed to the Local Government Board against the distribution of the duties of the offices of inspector of poor and collector of poor rates as carried out by the defenders, and that his said appeal was dismissed. (Cond. 3) When the defenders appointed Mr Stuart they took the view that the pursuer's office of inspector of poor had come to an end by force of the Act of Parliament in consequence of the union of the two parishes and their appointment of the said Robert Stuart. They accordingly intimated to him that his services had terminated, and offered him a sum in name of compensation. Said intimation was illegal, invalid, and of no effect, in respect that the pursuer was still in right of the said office of inspector of poor. The offer was refused by pursuer, who thereafter raised an action for payment of past due salary. This action ultimately reached the Court of Session, who granted decree in favour of the pursuer, holding that the servants of the old parishes were transferred by the Order to the new parish, and that the pursuer and Mr Stuart each continued as inspectors of poor for the united parish. The pursuer accordingly continued to hold office from and after the amalgamation of the said parishes as inspector of poor jointly with Mr Stuart for the combined parishes of Arbroath and St Vigeans, and he has continued to hold, and still holds, this office. The duties of collector devolved upon him as after mentioned in no way affect his right to the status and office of inspector for the parish. (Cond. 4) Following on said decision the defenders took steps to distribute among their officers the duties falling to be performed by them, and devolved upon the pursuer the duties of collector of poor rates. The pursuer took up the duties so devolved upon him. The salary paid to the pursuer from that date was at the rate of one hundred pounds (£100) per annum. Pursuer appealed against said resolution of the Parish Council to the Local Government Board, but his appeal against the' devolution of the duties of collector upon him was dismissed. Pursuer therefore at the request of the Parish Council entered upon said duties of collector on or about 23rd October 1896, and has competently performed them ever since. The duties pertaining to the office of inspector of poor continued to be performed by the said Mr Stuart. Pursuer's then agents, Messrs Webster & Littlejohn, wrote to the Local Government Board on receipt of their letter intimating the dismissal of his appeal, asking for some further information in regard to the matter, and they received the following letter in reply ‘Gentlemen I have to acknowledge receipt of your letter dated 19th inst., and I am directed to explain that the decision of the Board on Mr Seaton's appeal is without prejudice to his rights and status as inspector of poor. He continues to hold office with the same tenure and emoluments. The Parish Council have resolved on an alteration of his duties, which under the statute they are entitled to make, subject to an appeal to his Board, and the Board on appeal taken to them have seen no reason to interfere with the resolution of the Parish Council, as their offer appears to the Board fair and reasonable, and such as ought to be accepted. I am to suggest that application should be made to the Secretary for Scotland for an Adjustment Order such as has been issued in similar cases.—I am, Gentlemen, your obedient servant, Malcolm M'Neill, Secy.’ The pursuer, in the belief that his status as inspector of poor was secure and recognised by the defenders and the Local Government Board, thenceforward performed the duties of collector of poor rates, but he did so under strong protest, and has all along maintained his status as an inspector of poor of said parish. (Cond. 5) The said Mr Stuart resigned office in December 1918. On his resignation the pursuer became sole inspector of poor for defenders' parish, and was thereafter the sole person entitled to discharge the duties of inspector of poor for defenders' parish. Notwithstanding this, at a meeting of the Parish Council held on 10th December 1918 the defenders passed a resolution purporting to appoint a Mr Henry Myles acting inspector of poor of the united parishes at a salary of one hundred and eighty-five pounds (£185) per annum, while Mr Robert Stuart, who had resigned the office of inspector, was appointed consulting inspector.… On 4th May 1920 [Mr Henry Myles resigned on 5th April 1920] the defenders passed a resolution purporting to appoint a Mr William Bennet Gardner as inspector of poor for the combined parish. The said resolutions of the defenders purporting to appoint Mr Myles and Mr Gardner were illegal, invalid, and ultra vires. On the resignation of the said Mr Stuart the pursuer became and remains sole inspector of poor for the parish of Arbroath and St Vigeans. He has all along been able and

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willing to perform the duties pertaining to the office of inspector of poor, and so long as he remained and remains as such in the service of the defenders it was and is incompetent, illegal, and ultra vires of the defenders to appoint any other person inspector of poor for the said combined parish.… (Cond. 6) … The said Henry Myles during his term of office as inspector of poor was paid one hundred and eighty-five pounds (£185) per annum, and the said William Bennet Gardner is being paid by the defenders a salary at the rate of two hundred and fifty pounds (£250) per annum The pursuer is entitled to receive the salary or remuneration pertaining to said office, and that as from and after 10th December 1918 after the date of resignation of Mr Robert Stuart, who along with him held the office of inspector in virtue of the said section of the Local Government Act 1894, and who performed the duties thereof under the said Parish Council until the said date of his resignation. The sum sued for represents the difference between the sum actually paid to pursuer by defenders and the sum to which he was entitled as inspector of poor since 10th December 1918.…”

The pursuer pleaded, inter alia—“1. The pursuer having become, jointly with the said Robert Stuart, inspector of poor for the parish of Arbroath and St Vigeans by reason of his previous office and the subsequent order foresaid of the Secretary for Scotland, is entitled to decree in terms of his first declaratory conclusion. 2. The said Robert Stuart having resigned his said office of inspector of poor for said parish of Arbroath and St Vigeans on December 1918, the pursuer is entitled to decree in terms of his second declaratory conclusion. 3. In respect the said pretended appointment by the defenders of the said Henry Myles as acting inspector of poor for the parish of Arbroath and St Vigeans, contained in the minute libelled, is illegal, invalid, and ulra vires, the pursuer is entitled to decree in terms of the declaratory and reductive conclusions in the summons thereanent. 4. In respect the said pretended appointment by defenders of the said William Bennet Gardner as inspector of poor for the parish of Arbroath and St Vigeans, contained in the minute libelled, is illegal, invalid, and ultra vires, the pursuer is entitled to decree in terms of the declaratory and reductive conclusions in the summons thereanent. 5. In any event, the pursuer being inspector of poor of the said united parish, decree should be pronounced in terms of the sixth conclusion. 6. The pursuer being entitled to the emoluments of inspector of poor of said parish since 10th December 1918, and the sum sued for in respect thereof being due and resting-owing to him, decree should be granted therefor in his favour.”

The defenders pleaded, inter alia—“1. The pursuer's averments being irrelevant the action should be dismissed.”

The Order by the Secretary for Scotland referred to in the pursuer's averments contained the following paragraphs

“1. The parish of Arbroath and the parish of St Vigeans shall be united into one parish to be called the parish of Arbroath and St Vigeans.

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.

5. Nothing herein contained shall affect the rights of creditors or of persons having vested interests.”

On 2nd December 1920 the Lord Ordinary ( Sands) sustained the first plea-in-law for the defenders and dismissed the action.

Opinion.—“The pursuer was down to 1895 inspector of poor of the parish of Arbroath. In that year the parish of Arbroath was united with the parish of St Vigeans under the powers conferred upon the Secretary for Scotland by the Local Government Scotland Act 1889. Thereupon the Parish Council proceeded to appoint Mr Stuart, the former inspector of poor of St Vigeans, inspector of poor of the united parish, and to treat the pursuer's appointment as having lapsed on the union of the parishes. The pursuer, however, challenged their proceedings and raised an action in the Sheriff Court of Forfarshire for his salary. In this action the Sheriff-Substitute issued an interlocutor finding ‘that the action of the Parish Council of Arbroath and St Vigeans in depriving the pursuer of his office of inspector of poor of the parish of Arbroath is ultra vires and illegal,’ and decerning for his salary. This interlocutor was affirmed upon appeal to the Court of Session ( Seaton, 1896, 23 R. 763). In the present action the pursuer seeks to have it declared that upon the union of the parishes he became, jointly with Robert Stuart, inspector of poor for the parish of Arbroath and St Vigeans. I am not sure that the word ‘jointly’ is appropriate. Instead of there being, as is usual, one inspector of poor in the united parish, there were here two, but there was no joint appointment.

I consider the case for a moment as if there had been no Act of 1894, and the position were regulated exclusively by the Act of 1889. The situation as pointed out by the Lord President in the case of Seaton above cited was unusual. It had been held in the case of Board of Supervision v. Glasgow Parochial Board, 1850, 12 D. 627, that though a parochial board may appoint more than one inspector of poor, it can do so only if it appoints them for distinct districts with the whole duties. It cannot appoint two and divide the duties between them. But as was held in Seaton's case there is no incompetency in having two without any division of districts where the situation is brought about by a union of parishes. This situation is an exceptional one. Whether the peculiarity of the situation resulting from a union of parishes may endure so long as one of the two retains office, or whether on the other hand, as the pursuer here contends, on the resignation of

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the one the parish council must, nolens volens, treat the other as sole inspector of the united parish, though they were neither obliged to accept him as such at the union nor subsequently appointed him to the sole office, appears to me to be a question of some difficulty, but in the view I take it does not arise in the present case, being obviated in this case by the special provision of the Local Government Act of 1894.

It happened that the union of the two parishes followed immediately upon the coming into force of the Local Government (Scotland) Act 1894. Under that Act the powers and duties of the Parochial Board were transferred to the Parish Council. The latter were obliged to take over the staff of the former. But as regards these existing officers a special power was given to the parish councils. Section 51 (2) provides—‘Subject to any general regulations of the Board, a parish council may distribute the business to be performed by existing officers and may combine their duties in such manner as the council may think expedient, and every existing officer shall perform such duties in relation to such business as may be directed by the council: Provided that if any existing inspector of poor is aggrieved by such distribution of business or by the imposition or withdrawal of any duties he may within one month after the date of any resolution of the council distributing such business or imposing or withdrawing such duties, appeal to the Board, whose decision shall be final.’

The intention of this provision is not, I think, doubtful. Under the immediately preceding sub-section it had been provided that ‘the existing officers shall hold their offices by the same tenure and upon the terms and conditions as if this Act had not passed and while performing the same duties shall receive not less salaries and remuneration.

The Act accordingly forced upon the new and popularly elected bodies a set of officials whom they had not chosen, and the object of the provisions appears to me to have been to reconcile as far as possible the legitimate interests of then existing officials with the freedom of the new councils in the arrangement of their business. One can readily figure the case of a new parish council which might find in the saddle as inspector of poor an elderly and no longer very active officer whose duties they might find it expedient to alter or curtail.

The effect of these provisions as regards existing inspectors of pqor was, as I think, to release parish councils from the rule established by the case of the Board of Supervision v. Glasgow Parochial Board, 12 D. 627, already cited. Although the effect of that decision was that the parochial board could not appoint more than one inspector of poor unless they divided the parish into districts, that was not its ratio. Its ratio was that the parochial board could not (adopting the language of section 51 (2) of the 1894 Act) ‘distribute the business’ of the inspector of poor. But section 51 (2) allows them in the temporary case of an ‘existing officer’ to ‘distribute the business’ to be performed by him, and the proviso makes it clear that existing inspectors of poor were specially in view. Doubtless the reason why they were specially safeguarded by a right of appeal was that there was some weighty if not conclusive authority to the effect that their tenure was ad vitam aut culpam.

Availing themselves of their power under this Act the Parish Council assigned to the pursuer the duty of collecting the rates at a salary of £100 per annum. Against this decision the pursuer appealed to the Local Government Board, who confirmed the determination of the Parish Council. The pursuer did not challenge the action of the Parish Council or the Local Government Board as being ultra vires in law, and he entered upon his duties as collector of rates. He has since discharged these duties.

I do not see reason to hold that the action of the Parish Council and of the Local Government Board in 1895 was not within their powers. But in any view I am of opinion that the pursuer is now barred from challenging it as ultra vires by lapse of time, and by his acceptance and enjoyment of the duties and salary of the collector of rates during this long period.

Accordingly the position of the pursuer is that in respect of his office as inspector of poor of the parish of Arbroath in 1895, when the union was effected, he has the tenure and the status of an inspector of poor, and his duty lawfully assigned to him and discharged for nearly a quarter of a century is the collection of the rates. The collection of rates is not part of the statutory duties of an inspector of poor. The inspector may or may not be collector of rates. Since 1895 the pursuer has not been called upon to discharge any of the duties specially appropriate to an inspector of poor. The question raised in the present case is whether, such being the position of the pursuer, he is entitled to claim the whole duties and emoluments of the office of inspector of poor of the united parish, and it is ultra vires of the Parish Council to appoint any other person as inspector of poor. In my opinion the question falls to be answered in the negative. The pursuer is discharging duties which must be held to have been lawfully assigned to him. These duties do not include any of the functions of the inspector of poor, and the pursuer's position is no bar to the appointment by the Parish Council of some other person to perform those duties which have not been assigned to him. Such an appointment would, as it appears to me, not be inconsistent with what was decided in the case of the Board of Supervision v. Glasgow Parochial Board cited above, for, as I have already stated, what was there decided was that the Parochial Board cannot divide up the statutory duties of the inspector of poor, not that in one parish there cannot be two persons holding the position of inspector of poor. The circumstance that there was a union of parishes in this case does not appear to me to affect the question as it now stands. What the Parish Council

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did in assigning to the pursuer the duty of collector was done under a section which has reference, not to the union of parishes, but to a parish council taking over the existing officers of a parochial board. It may perhaps be arguable that in such a case for the parish council so to distribute the duties of their officers that an existing inspector of poor was deprived of all the functions peculiar to an inspector of poor would have been ultra vires. But I am of opinion that such an arrangement, confirmed by the Board of Supervision, and subsequently acted upon, cannot be challenged after a lapse of twenty-four years.

I shall accordingly sustain the first plea-in-law for the defenders and dismiss the action with expenses.”

The pursuer reclaimed, and argued—The effect of the Order was that pursuer and Mr Stuart became inspectors of poor of the united parish with the same duties as they had before the union— Seaton v. Parish Council of Arbroath and St Vigeans, 1896, 23 R. 763, 33 S.L.R. 583—but neither the Order nor section 51 of the Local Government (Scotland) Act 1894 authorised the Parish Council of the united parish to appoint an inspector of poor while there was an existing one. The Parish Council had no power to appoint two inspectors of poor—Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83), sections 32, 55, 56, and 57. The Board of Supervision for the Relief of Poor v. Parochial Board of the City of Glasgow, 1850, 12 D. 627. Section 51 did not empower the Parish Council to allocate to an inspector of poor the duties of another kind of official, and to appoint a second inspector of poor. The pursuer therefore became, on Mr Stuart's resignation, the sole inspector of poor for the united parish and the appointments in Mr Stuart's place were ultra vires. There was no case of bar. The pursuer had never accepted the office of collector and had performed the collector's duties only while an allocation of these duties was necessary in consequence of the union of the parishes.

Argued for the respondents—(1) The defenders were not interfering with the pursuer's status or emoluments. The order did not mean that the pursuer became inspector of poor for the united parish. What had been done by the defenders was within the terms of section 51 of the Local Government (Scotland) Act 1894, which were general, applied to “existing officers,” and conferred the authority to “distribute the business,” the absence of which was the ratio of the decision in the Board of Supervision for the Relief of Poor v. Parochial Board of the City of Glasgow. The allocation of the collector's duties to the pursuer had been approved by the Local Government Board, whose determination was final. There was nothing, therefore, to prevent the Parish Council from appointing an inspector of poor. The pursuer's contention as to the effect of the order involved an inference which he was not entitled to make. Even where two officials were appointed to act jointly, the office did not, on the resignation of one, devolve on the other— The Queen v. Wake, 1857, 8 E. and Bl. 384. Further, the pursuer having accepted the decision of the Local Government Board and performed the duties of collector, could not now claim to perform the duties of inspector of poor. (2) The averments in support of the petitory conclusion were irrelevant. There were no definite emoluments.