Hastie v McMurtie
| Jurisdiction | Scotland |
| Judgment Date | 04 June 1889 |
| Date | 04 June 1889 |
| Docket Number | No. 133. |
| Court | Court of Session (Inner House - First Division) |
Lord Fraser M., Lord President, Lord Shand, Lord Adam.
Contract — Church — Foreign Mission of Church of Scotland — Principal of Missionary Institution — Nature of office.—
Public officer — Nature of office — Induction — Appointment ad vitam aut culpam.—
On 16th April 1878 the Foreign Mission Committee of the Church of Scotland (a committee appointed yearly by the General Assembly to manage the affairs of the Foreign Mission, which was supported entirely by voluntary contributions), determined to offer the post of principal of their institution at Calcutta to W. H., who was then a licentiate, ‘on the usual salary and allowance.’ The committee's minute of 8th May bore that W. H., who was present, agreed to accept office ‘on the terms minuted at last meeting.’ On 16th July the committee appointed W. H. to be principal ‘on the terms and under the conditions already agreed on.’
Some years previous to that appointment the committee had drawn up certain regulations, which were approved by the General Assembly, in reference to the employment of missionaries in India. Under these rules the committee had power, inter alia, to dispense with the services of a missionary at any time by giving six months' notice. W. H. had a copy of these regulations in his possession, and had considered them at the date of his acceptance of office. On W. H.'s acceptance, the Presbytery of Edinburgh met, and having sustained his trials (as the minute of meeting bore), ‘he was … set apart to the office of the holy ministry and inducted to the office of principal of the General Assembly's institution at Calcutta.’ After he had been principal for five years the committee decided to dispense with his further services, and recalled him, paying him six months' salary in lieu of notice.
W. H. thereafter raised an action of declarator, payment, and damages against the committee, in which he maintained that they had acted illegally in recalling him, in respect (1) that, as matter of fact, he had, before accepting office, stipulated that he should not be bound by the regulations above referred to, and (2) that, having been ordained and inducted to his office in due form by the presbytery, he held it ad vitam aut culpam. Held, after a proof (1) that the office in question was not a munus publicum, but that the pursuer's employment depended on an ordinary contract of service; and (2) that his engagement was terminable at six months' notice by either party in terms of the regulations. The defenders were therefore assoilzied.
observations(per the Lord President) on the history and effect of induction to an office or cure.
Observed per the Lord President,—‘The law applicable to appointments ad vitam aut culpam may be summarised thus—Either the appointment must expressly bear that the appointee is to hold his office for life, or the office must be of such a nature that a life appointment is necessarily implied. In this last class are embraced only offices of the nature of munera publica. Public officers are irremoveable except for fault. Holders of benefices in the church are public officers, and these offices are munera publica.’
In January 1888 the Reverend William Hastie, Edinburgh, raised an action against the Rev. John M'Murtrie, convener, and John Thomson Maclagan, secretary, as representing the committee of the Foreign Mission of the Church of Scotland, and the whole individual members thereof, in which he concluded for declarator ‘(first) that upon the 16th day of October 1878 the pursuer was by the Presbytery of Edinburgh ordained and set apart to the office of the holy ministry in the Church of Scotland, and inducted to the office of principal of the General Assembly's institution at Calcutta, to which office he had been nominated and elected by the said mission committee, by which ordination and induction he became entitled to the emoluments, salary, and whole profits attached to the said office, so long as he continued to hold the same, and should not demit the said office, or be legally removed therefrom, according to the laws and constitution of the said Church of Scotland; and (second) that immediately thereafter the pursuer went to Calcutta and entered upon the discharge of the duties attaching to the said office of principal of the General Assembly's institution there, and continued in the discharge of said duties until the 15th day of December 1883, when he was wrongfully, illegally, unwarrantably, and maliciously extruded and removed from the said office, and prevented from discharging the duties thereof by the defenders, the Foreign Mission Committee aforesaid, or by representatives thereof for whom the said defenders are responsible, and that since the 15th June 1884 he has been wrongfully and illegally deprived of the emoluments, salary, and whole profits attached to his said office, in violation of the rights conferred upon him by his ordination and induction thereto as aforesaid under the laws and constitution of the said Church of Scotland’; and further concluded (third) that the defenders should be ordained to make payment of arrears of salary and for future payments thereof in all time coming during his lifetime, ‘or until he demits the said office, or is lawfully removed therefrom according to the laws and constitution of the said Church of Scotland; and (fifth), in any view, for payment of £7500 as damages.’
The pursuer averred that in 1878, ‘while acting as a licentiate of the Church of Scotland, he was called and nominated to the office of principal of the General Assembly's institution at Calcutta by the Foreign Mission Committee represented by the defenders. This call and nomination was accepted by the pursuer on the condition that he should not be bound by the special rules applied by the committee to their other missionaries. Thereafter on the motion and request of the said Foreign Mission Committee, the pursuer was taken on trials, and was ordained and set apart by the Presbytery of Edinburgh upon the 16th day of October 1878, to the office of the holy ministry in the Church of Scotland, and inducted to the office of principal of the General Assembly's institution at Calcutta. In virtue of his ordination and induction by the Presbytery of Edinburgh, he became subject to its jurisdiction, and has remained ever since without interruption subject to its jurisdiction as a Court of the Church of Scotland. His induction to the foresaid office of principal of the General Assembly's institution in Calcutta conferred upon him a vested right to the said office, and to the emoluments, salary, and profits attached thereto, so long as he continued to hold the same and should not have demitted it or be legally removed therefrom according to the laws and constitution of the said Church of Scotland.’
The defenders, in answer, referred to the minutes of the Presbytery of Edinburgh, and of the Foreign Mission Committee of the General Assembly; quoad ultra denied the pursuer's averments, and stated;—‘The Foreign Mission Committee merely requested the presbytery to take the pursuer on trials for ordination to the office of the ministry. The pursuer accepted office on condition, inter alia, that he might be dismissed on six months' notice and being paid his passage to this country, and the Foreign Mission Committee had no power to make or sanction an appointment on a different tenure.’
The pursuer further averred;—(Cond. 2) ‘The Foreign Mission Committee represented by the defenders is appointed annually by the members of the General Assembly of the Church of Scotland in connection with the consideration of a report of the work of Foreign Missions in India, Africa, and China. The members of this committee do not require to be members of the Assembly, or even office-bearers of the Church of Scotland. The said committee is not a Court of the Church of Scotland, and it has no statutory recognition or authority. It has no ecclesiastical jurisdiction over ordained and inducted ministers, and when the exercise of such jurisdiction was required for the pursuer's ordination and induction, application for that purpose was made by the committee to the Presbytery of Edinburgh, of which presbytery the convener and several leading members of the said committee were members. It is not a committee of members of the General Assembly, nor does it represent the Assembly as an Ecclesiastical Court constituted by law, although it contains representatives from the different presbyteries of the Church. It has not been constituted by any Act of the Assembly, but is in reality a committee of members of the Church of Scotland contributing funds for missionary enterprises, and working as a voluntary association. It receives and administers all the funds raised for missionary purposes in connection with the Church of Scotland, and disburses these funds through its treasurer, and its investments are made, and rights and securities taken, in name of the convener and secretary of said committee and their respective successors in office in trust for behoof of said committee.’ (Cond. 3) ‘The said committee when they called and nominated the pursuer to the office of principal of the General Assembly's institution agreed to pay him the salary of £510 per annum, by monthly payments, being £100 more per annum than they paid to other missionaries appointed under their special rules, and in addition the said committee agreed to provide him with a house as principal of the General Assembly's institution or to pay an allowance in lieu thereof, which according to the usage at Calcutta is £100 per annum. From January 1879 to January 1881 the pursuer was duly paid his salary at the rate of £510 per annum, but in January 1881 it was increased by mutual agreement to £560 per annum, according to which agreement he has been paid up to the 15th June 1884. The agreement as to salary and allowance and the guarantee for...
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