Scottish Court of Session Decisions

The Glasgow Police Act contains, inter alia, the following clauses: “Sect. 14. And be it further enacted, that the Lord Provost and five Bailies, the Dean of Guild, and the Deacon Convener of the trades of the said city, and the general commissioners of the said wards, chosen as aforesaid, shall be, and are hereby appointed as a board of general commissioners for assessing, levying, and applying the monies hereinafter directed to be raised, for the purposes of this act, for naming and appointing the master or superintendent of police, collectors, treasurers, clerks, and other servants, to be employed in the execution thereof, for fixing their salaries, for regulating the manner of watching, patrolling, lighting and cleaning the streets, for establishing rules and regulations for the direction and government of the said master or superintendent, collectors, treasurers, clerks, and other servants, and as hereinafter directed, and for executing the other matters specified in this act, and committed to their charge.”

“Sect. 17. And be it further enacted, that besides the four quarterly meetings before mentioned, weekly meetings of the said Lord Provost, Magistrates, Dean of Guild, Deacon Convener, and other general commissioners, shall be held for the purposes of this act, and particularly for the purpose of ordering payment of the wages and salaries of the inferior officers and servants appointed under this act, for enquiring into their conduct and behaviour, and for reprimanding or dismissing such of them as may have acted improperly,” &c.

“Sect. 36. And be it further enacted, that it shall and may be lawful to the said Lord Provost, Magistrates, Dean of Guild, Deacon Convener, and other general commissioners herein named, and they are hereby empowered and required to appoint a fit and proper person to be master or superintendent of police, for executing the matters committed to him by this act, for regulating the police, and for preserving peace and good order within the said city; provided always, that it shall be in the power of the said Lord Provost, Magistrates, Dean of Guild, Deacon Convener, or of them and the other general commissioners herein appointed, at any meeting held for the purpose, to dismiss the said master or superintendent of police from his said office.

“Sect 37. And whereas it is expedient that the master or superintendent of police so to be appointed should, as far as possible, be made answerable for the conduct of the officers, patrol, and watchmen to be appointed in these departments, and acting under his orders, be it enacted, that as often as the board of general commissioners hereby appointed shall; have fixed the competent number of officers, patrol, watchmen, and other servants which they shall judge necessary for the purposes of this act, and which they are hereby authorized and required to do (the number of officers to be employed exclusively in the criminal department of the establishment not being less than six), and shall hare also ascertained the eligibility of applicants to serve in these several departments, it shall and may be lawful to the said master or superintendent of police, and he is hereby authorized and required to appoint from among the said applicants, whose eligibility shall have been so ascertained, fit and proper persons for said offices, and to remove them at pleasure, the said master or superintendent being always accountable to the said Lord Provost and Magistrates, and to the said board of general commissioners, not only for his own conduct, but for the conduct and efficiency of the officers, patrol, watchmen, and other inferior servants selected and appointed by him, and acting under his directions.

“Sect. 38. And be it further enacted, that it shall and may be lawful to and for the said Lord Provost, Magistrates, Dean of Guild, Deacon Convener, and other general commissioners herein named, and they are hereby authorized and required to appoint a collector or collectors, treasurer or treasurers, for levying, receiving, and paying away the monies to be raised in virtue of this act; to appoint a clerk or clerks for keeping their books and records; to appoint a surveyor or surveyors for making up lists of the persons qualified to elect or be elected commissioners as aforesaid; to appoint a superintendent of fire-engines, and such other servants as shall be necessary to be employed in the execution of this act, and whose appointment is not otherwise herein provided for.

“Sect. 39. And be it further enacted, that it shall and may be lawful to and for the said Lord Provost, Magistrates, Dean of Guild, and Deacon Convener, and other general commissioners herein named, and they are hereby authorized and required to appoint suitable salaries to the said master or superintendent of police, collectors, treasurers, clerks, superintendents of fire-engines, and to the officers, patrol, watchmen, firemen, scavengers, lamplighters, and the whole other servants of the said establishment; to pay the necessary expenses incurred by them in the execution of the duty of their respective offices, and to reward them for meritorious services or extraordinary trouble.

“Sect 42. And be it further enacted, that nothing herein contained shall be so construed as to prevent the said magistrates, or any two of them, from punishing or dismissing any of the officers, patrol, watchmen, or other inferior servants appointed in virtue of this act, when the said, magistrates, or any two of them, shall find it necessary and proper so to do; and that no officer, patrol, watchman, or other servant so dismissed, shall be reinstated, without the consent and approbation of two of the said magistrates for the time being.”

Among the criminal officers in use to form part of the establishment, were three head constables, acting immediately under the direction of the superintendent. In 1832, a suggestion was made by the then superintendent (Mr Denovan) as to some alteration in respect to the qualifications and duties of these constables, whom he proposed should thereafter be designated lieutenants; and a committee of the board of police having been appointed to consider this and other suggestions, returned a report, which, as to it, was in these terms;—“This proposition, as explained by the notes, goes to recommend for the duties performed by the three head constables, and for certain additional duties, the appointment of persons of higher qualifications than those hitherto acting in this department; and, considering the importance and delicate nature of many of the matters daily under the cognizance of these officers, and the intelligence and discretion necessary for carrying them prudently and respectably through their duty in all cases, it has long been felt by many members of your board, that there was here considerable room for improvement. Your committee cordially fall in with this proposition, doubts being only entertained, by some of the members as to the appropriateness of the new name of lieutenants proposed to be given to the new officers; in consequence of which, it is agreed that this point should be left to the determination of the board.

“Your committee unanimously recommend the appointment of persons better qualified, as proposed.”

The board unanimously approved of this report, but opposite motions were made, as to whether the new officers should be termed “lieutenants,” or should continue to be called “constables.” It was carried, by a majority of 14 to 8, that they should be called lieutenants, and this was ordered accordingly. The salary for these lieutenants was afterwards fixed at £80 per annum, and advertisements were published, calling on candidates to make application for the office. Numerous applications were given in, and the board, taking the election into their own hands, on the 9th November, 1832, chose three persons, including, among others, the pursuer M'Kay, by a minute, which previously declared, “that the duration of their engagement under this election should, in the first instance, be for the period from their entering on their duties till the last Monday of May next, to be subject to re-election then, and annually thereafter, the elections always taking place one month prior to the last Monday of May, as fixed by the minute of 1st March last.”

The minute of 1st March, here referred to, provided, “that all the superior officers of the establishment hereafter appointed, viz. superintendent, collector, surgeon, and other having charge of departments, shall be held to be engaged to the last Monday of May following their appointment, and for one year thereafter; and that they shall then continue to be elected annually for one year from the last Monday of May, the elections to take place at least one month previous to the expiry of the year, without prejudice to the legal powers of the board to remove officers.”

The clerk was directed to intimate their appointment to the parties chosen, which was accordingly done by a letter, bearing, inter alia, “You are engaged, in the first instance, from that time till the last Monday of May next, to be continued thereafter, from year to year, by elections to take place one month before the last Monday of May, so long as you give satisfaction.”

M'Kay entered on the duties of his office on the 1st of January, 1833, but, on the 26th June thereafter, in consequence of certain conduct on his part, to which it is unnecessary to refer, he was dismissed by a judgment or minute of Cogan and two others of the magistrates. M'Kay on this applied to the board of police, contending, that the magistrates were not entitled to dismiss him, but the board, “recognising the power of the magistrates in this case, declined any interference therein.” M'Kay thereupon raised the present action against Cogan and the two other magistrates, concluding for wages and for damages, on the ground that, as one of the superior officers of the establishment, elected by the commissioners, he was not liable to be dismissed by the magistrates, and that they had, without any legal authority, dismissed him; and also against the commissioners of police, on the ground that, having recognised and sanctioned this illegal act, they were liable to him in damages and wages.

In defence, it was pleaded, that the lieutenants were truly the same officers with the previous constables, under a different name; that though of a class superior to the watchmen and common police officers, they were still inferior officers, not being heads of departments, and were really of that class for whom the superintendent was responsible, and whom even he might have dismissed; that their election erroneously by the board, instead of their having been appointed by the superintendent after the board had ascertained their eligibility, could not alter the nature of their office; that the magistrates had inherently a complete control over the whole peace-officers of the burgh, and power to dismiss them, except in so far as limited by statute; while, in the present case, so far from the statute having excluded the powers of the magistrates, these were expressly saved (by § 42) in regard to all inferior officers.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note: ^*—“Finds that the defenders, Messrs Hugh Cogan, John Sommerville, and William M'Lean, had not right, as magistrates of Glasgow, to dismiss the pursuer from his office of lieutenant of police in Glasgow, which nevertheless they did, and therefore finds them liable to him for wages as libelled, and also for damages on account of said dismissal; finds the other defenders, the Commissioners of Police of Glasgow, liable to the pursuer for wages as libelled, but finds no relevant ground stated on which they can be subjected in damages to the pursuer.”