Mackay and Esslemont v Lord Advocate [1937] ScotCS CSOH_2 (16 July 1937)

Mackay and Esslemont v Lord Advocate [1937] ScotCS CSOH_2 (16 July 1937)

The conditions in the pursuers' commissions requiring them to vacate office at age 65 or to hold office during pleasure are ultra vires and illegal, being inconsistent with section 3(4) of the Small Landholders (Scotland) Act, 1911, and with the nature of the office as judicial or of the nature of munera publica, which requires tenure ad vitam aut culpam unless statute expressly provides otherwise. No statutory authority exists for imposing a fixed retirement age or a tenure at pleasure for ordinary members of the Land Court.

Citation
[1937] ScotCS CSOH_2
Parties
Pursuers: Mackay and Esslemont; Defender: Lord Advocate
Jurisdiction
Scotland
Judgment Date
16 July 1937
Procedural Posture
Declarator / First Instance, Opinion of Lord Robertson
Outcome
Declarator granted in favour of pursuers
Legal Topics
Tenure of Judicial Office, Statutory Interpretation, Ultra Vires Appointments, Security of Tenure, Public Officers, Retirement Age, Removal From Office
Constitutional Law Administrative Law Employment Law Judicial Office Tenure of Judicial Office Statutory Interpretation Ultra Vires Appointments Security of Tenure +3 more

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Parties

Mackay and Esslemont

Pursuers

Lord Advocate

Defender

Procedural Posture

Declarator / First Instance, Opinion of Lord Robertson

Legal Issues

  1. 1 Whether members of the Scottish Land Court hold office ad vitam aut culpam or may be subject to removal at pleasure or on attaining a fixed age
  2. 2 Whether conditions in commissions requiring retirement at age 65 or removal at pleasure are ultra vires and illegal under the Small Landholders (Scotland) Act, 1911
  3. 3 Whether the office of ordinary member of the Land Court is judicial or administrative and the implications for tenure

Ratio Decidendi

The conditions in the pursuers' commissions requiring them to vacate office at age 65 or to hold office during pleasure are ultra vires and illegal, being inconsistent with section 3(4) of the Small Landholders (Scotland) Act, 1911, and with the nature of the office as judicial or of the nature of munera publica, which requires tenure ad vitam aut culpam unless statute expressly provides otherwise. No statutory authority exists for imposing a fixed retirement age or a tenure at pleasure for ordinary members of the Land Court.

Court Disposition

Declarator granted in favour of pursuers

Orders

  • Declared that the pursuers hold office as members of the Land Court ad vitam aut culpam, subject to removal only for inability or misbehaviour in accordance with section 3(4) of the Small Landholders (Scotland) Act, 1911.
  • Declared that the conditions in the commissions purporting to grant office during pleasure or requiring retirement at age 65 are ultra vires, illegal, and of no force or effect.