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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackay and Esslemont v Lord Advocate [1937] ScotCS CSOH_2 (16 July 1937)
URL: http://www.bailii.org/scot/cases/ScotCS/1937/1937_SC_860.html
Cite as: 1937 SC 860, 1937 SLT 577, [1937] ScotCS CSOH_2

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JISCBAILII_CASE_SCOT_ADMINISTRATION OF JUSTICE

16 July 1937

Mackay and Esslemont
v.
Lord Advocate

LORD ROBERTSON'S OPINION.—The pursuers in this case are members of the Scottish Land Court, appointed by commissions dated respectively 20th December 1922 and 5th April 1923 under the Royal Sign Manual, bearing to be granted under the powers conferred upon His Majesty by the Small Landholders (Scotland) Act, 1911. These commissions contain conditions (1) that the appointment was granted during pleasure only, and (2) that the holder should vacate office on attaining the age of sixty-five. Each pursuer before his appointment was informed of the said conditions, and intimated his acceptance of the appointment subject to the said conditions. Each pursuer has acted in pursuance of his commission since the date of his appointment.

The first, pursuer will attain the age of sixty-five on 1st October 1937, and the second pursuer will attain that age on 9th September 1940. In the present action both pursuers conclude for declarator (1) that they hold office as members of the Land Court for life or until removed therefrom by the Secretary of State for Scotland for inability or misbehaviour subject to and after due compliance with the provisions contained in section 3, subsection (4), of the Small Landholders (Scotland) Act, 1911; and (2) that the conditions purporting (a) to grant the said office during pleasure only, and (b) to require the holder to vacate office on attaining the age of sixty-five, are ultra vires, illegal, and of no force or effect.

It is not pleaded that the action is incompetent, but in the course

of the discussion I raised a question on this matter. Parties then concurred in maintaining that the action was competent, and that it was not pars judicis to proceed upon an opposite view. Upon consideration of what was jointly submitted to me in this way I accept that position, and need do no more than note that the point was raised and dealt with as above.

An action was raised in 1923 by another member of the Land Court with the object of obtaining a judgment upon, inter alia, the matters that are now in issue. It came before Lord Murray, who dismissed it as incompetent. I have been supplied with a copy of his opinion. The incompetency upon which Lord Murray proceeded lay in the fact that a decree under a petitory conclusion was sought where none could be granted. There was also a declaratory conclusion, but his Lordship held it to be merely ancillary to the incompetent petitory conclusion. In the result no pronouncement was made by Lord Murray on the issues now before me.

In the present case, while the defender states no plea to the competency, he does state a plea of personal bar. At the conclusion of the opening argument by junior counsel for the pursuers on the merits of the case the Lord Advocate (who appeared personally) intimated that he did not maintain his plea of personal bar as against the only case developed in argument for the pursuers. If I rightly understood the position, the Lord Advocate conceded that he could not plead personal bar against a challenge of what may be described as a statutory illegality, and that, since the pursuers' argument on the merits was directed to the establishment of such a challenge, he did not maintain his plea of personal bar. In respect that the plea was not insisted in I shall repel it.

None of the material facts alleged by either of the parties is denied

by the other party. In these circumstances I was asked to dispose of the controversy on the pleadings, under reference to the terms of the correspondence and the commissions held by the pursuers—admitted copies of which have been lodged in process. A minute has also been lodged renouncing probation apart from the proof afforded by these documents.

In the course of the discussion the Lord Advocate gave an admission which made a material alteration on the position tabled for him in the closed record. His admission was that the terms of section 3 (4) of the Small Landholders Act, 1911, were inconsistent with the condition inserted in the pursuers' commissions purporting to grant them their offices "during pleasure only." Having regard to the terms of the statute, which are not here quoted, but which have been prominent in my consideration of nearly all aspects of this case, I think that this admission could not have been reasonably withheld. The result, as I see it, is that there is now no defence to branch (2) (a) of the conclusion for declarator, to which it will be necessary in any event to give effect. In the circumstances I am relieved from directly considering much of the argument submitted to me, although I think it right to say that I have found that argument to be indirectly of much assistance in dealing with that part of the case which remains contentious.

In proceeding to consider the outstanding matters I take as my starting-point the fact that the pursuers hold office under commissions in which it is a statutory illegality to insert a condition restricting their tenure of office to a tenure during pleasure—and this notwithstanding the fact that such a condition is in fact inserted in the commissions. Starting from that point, the question is whether, since a precarious tenure is excluded, the tenure can competently be restricted to a tenure other than ad vitam aut culpam—subject to the provisions of section 3 (4) of the Act of 1911; or in other words, whether, as the Lord Advocate put it, there is a tertium quid standing between tenure at pleasure and tenure ad vitam aut culpam. The tertium quid for which he contended may be described (if "inability" is linked with and taken as embraced in "culpa") as tenure ad culpam, subject to the provisions of section 3 (4) of the Act of 1911, but only until the age of sixty-five instead of ad vitam.Such a tenure is by no means unknown. The question is whether it is authorised by, or compatible with, the relevant statutory provisions, or compatible with the nature of the office.

It is to be observed that the terms of the condition in the pursuers' commissions by which the age limit of sixty-five purports to be imposed are as follows:

"Subject to the condition that you shall vacate office on attaining the age of sixty-five years, or earlier if incapacitated by ill-health or otherwise, without claim to compensation or superannuation allowance."

It is, in my view, clear that the pursuers have no right under the Act of 1911 to any retiring allowance. In this respect their position stands in contrast with that of the chairman of their Court, for whom a retiring annuity is expressly provided by section 3 (9) of the Act. The chairman's tenure of office, moreover, is expressly declared by the Act (section 3 (2)) to be the same as if he had been appointed a judge of the Court of Session. It was not maintained on either side that this tenure was of any lower order in point of security than a tenure ad vitam aut culpam. In these circumstances I think it is plain—and I think it was not disputed—that the insertion of an age limit in the commission granted to the chairman would be an illegality. But it was maintained for the Lord Advocate that in this respect also the members of the Land Court other than the chairman stand in contrast with the chairman. In this connexion I would only note at this stage that the absence of any provision for pension rights in favour of the ordinary members of the Land Court makes it an anxious matter to conclude that (unlike the chairman) they may competently be placed under an age limit; and if there are opposite views reasonably open on the question, it inclines my mind to the view that the imposition of an age limit is an illegality. It seems that, to put it no higher, the inclination of Lord Sands's mind was in the same direction, because in a note in his book on the Small Landholders Act, 1911 (2nd ed.), he says:

"The other members of the Land Court have no claim to pensions; but there is no age limit"

(p. 31).

The pursuers' commissions purport to require them to vacate their offices, not only on attaining the age of sixty-five years, but also "earlier if incapacitated by ill-health or otherwise." No special point was made of this, nor is it covered by any particularised conclusion of the summons, although it imports, I think, a condition which would be negatived as an illegality if effect were to be given to the general conclusion of the summons that the pursuers hold office "for life or until removed therefrom by the Secretary of State for Scotland for inability or misbehaviour subject to and after due compliance with the provisions contained in section 3 (4) of the Small Landholders (Scotland) Act, 1911." In my view the terms of the pursuers' commissions as regards this matter of vacating office "if incapacitated by ill-health or otherwise" offend against the provisions of section 3 (4) of the statute. I cannot distinguish incapacity "by ill-health or otherwise" in substance from "inability"—and it certainly covers, in any event, a case of "inability." The Act of 1911 provides important safeguards against removal from office in a case of "inability." In terms of the pursuers' commissions these safeguards do not exist. If the "incapacity" (or "inability") were to be matter of dispute, some process of law might require to precede removal; but the parliamentary control, which is retained for Parliament by the Act of 1911, would be abolished if in this matter the legality of the pursuers' commissions were to be sustained. In my opinion this part of the condition as to, vacating office is inconsistent with the terms of the Act of 1911, just as the condition that the tenure is "during pleasure" is inconsistent with that Act.

It does not, I think, necessarily follow from the foregoing conclusion that the remanent part of the condition as to vacating office—viz., that part which calls for retiral at the antecedently fixed age of sixty-five—either is statutorily illegal or is void because of inconsistency with the nature of the office. That is the point which must now be decided. As a preliminary it is desirable to give some consideration to the nature of the office. Is it judicial or is it administrative? Or is it part one and part the other, and in that event which part predominates?

Such an inquiry appears to me to be relevant—if the statute of 1911 is not per se conclusive—because I think it is the case that, if the office (being salaried) is judicial, then it is inconsistent with the common law nature of the office that its tenure should be precarious, or should be of any less security than a tenure ad vitam aut culpam. The common law tenure of judicial office ad vitam aut culpam no doubt involved, of its nature, an element of insecurity in respect of the possible death of the Sovereign; but even this feature of such an office—which may not have been obnoxious to the common law because it is remote from any suggestion of influence towards judicial partiality—has been recognised (for whatever reason) as undesirable. The Demise of the Crown Act, 1901 (1 Edw. VII, cap. 5), removed this element of insecurity. It may be that the Declaration of the Convention Parliament of 1689, cap. 13, that "the changing of the nature of the judges' gifts ad vitam aut culpam into commissions durante beneplacito" is "contrary to law" referred directly only to the judges of the Court of Session. It may be also that specialties exist in the history of the Court of the High Admiral, and that the Declaration was not regarded as applying to the judges of that Court. None the less I think that the Declaration of 1689 may properly be regarded as setting forth generally that any tenure of a salaried judicial office which is other than ad vitam aut culpam is inconsistent with the common law nature of the office. If I am right in this view, then the inquiry whether the ordinary members of the Land Court are judges is of evident importance. If they are judges, then it follows that the condition limiting their tenure of office to a tenure during pleasure is not only, as the Lord Advocate admitted, statutorily illegal, but is also void as being inconsistent with the nature of the office. I think that it is important to keep in mind this double ground of objection when considering the legality of the condition for retinal at the age of sixty-five.

The nature of the office of an ordinary member of the Land Court was much in dispute. There are various considerations, of which some point in one direction and some in the opposite direction. In favour of the view that the office is judicial it may be noted that the members are members of a "Court"; that their Court is competent to make, and has made, Rules of Court regulating procedure; that certain of the functions of the Court are clearly judicial (see, e.g., section 20 of the 1911 Act); that the Court may award expenses (section 25 (4) of the 1911 Act); and that for the purposes of the Landholders Acts the Court has "full power and jurisdiction to hear and determine all matters whether of law or fact, and no other Court shall review the orders or determinations of the Land Court" (section 25 (2) of the 1911 Act). The section just quoted contains provision for an appeal by way of special case on a question of law, and that provision also may be founded upon in favour of the view that the functions of the Court are judicial. Finally, the salaries of the members of the Court are charged on and paid out of the Consolidated Fund—with the effect, as Lord Sands points out in his notes on the 1911 Act, that their conduct cannot be impugned on the estimates in the House of Commons. In favour of the opposite view—i.e., that the office is not judicial—it may be noted that the Land Court is not a Court of Record; that it cannot (as a Court) inflict punishment for contempt (section 25 (3) of the 1911 Act); that it is constituted as a body corporate with a common seal (section 25 (1) of the 1911 Act); that its ordinary members require no legal qualification; that no ordinary member can act as chairman (section 3 (5) of the 1911 Act) although the "Court" may be constituted without the chairman (section 25 (5) of the 1911 Act); and that the Court makes an annual report to Parliament. The point last noted is a legacy from the Crofters Holdings (Scotland) Act of 1886 (49 and 50 Vict. cap. 29), section 18. These, with one exception, are the most important of the matters founded upon on either side. The exceptional important point is that the Court has no direct power to enforce its own decrees; but the significance of this point is debatable. A person holding an order of the Land Court is at once entitled to obtain decree conform from the Sheriff, upon satisfying him that the order has been duly recorded (section 25 (6) of the 1911 Act). As regards this matter the Land Court stands on a different footing from the preexistent Crofters Commission (see section 28 of the 1886 Act (49 and 50 Vict. cap. 29)). It remains to note that the opinion of the chairman of the Court is not conclusive even on a question of law (in contrast with the position under the Railway and Canal Traffic Act, 1888 (51 and 52 Vict. cap. 25), section 5 (3)); and that any one member sitting to try a case is the "Court," so that an appeal lies direct from his decision to the Court of Session—Strachan v. Hunter, 1916 S. C. 901.

I think it is true that many of the functions of the Land Court are administrative—or at all events that their characteristic is administrative rather than judicial. The fixing of fair rents is a case in point. Another case in point formerly was the constituting of new holdings, but it is somewhat noteworthy that this function was transferred by the 1919 Act (Land Settlement (Scotland) Act, 1919 (9 and 10 Geo. V, cap. 97)), section 9, to the Department of Agriculture. In answer 5 in the defences it is stated for the Lord Advocate:

"Explained that the members of the Land Court perform both administrative and judicial duties."

That is undoubtedly accurate. It is difficult to say which aspect of their function is the more important; but, in my view, it is sufficient for present purposes to note that the judicial aspect is not merely incidental, but is of substantive and independent importance. The members of the Court are amongst the judiciary in much more than a nominal sense—and it does not detract from the significance of this conclusion to note that they also perform important administrative duties. For that matter, so does every Sheriff-principal. In line with this conclusion I may note that, whereas it appears that the Crofters Commission set up by the Act of 1886 was not a Court—Sitwell v. Macleod, 1 F. 950, at p. 956—the Land Court (which took over very many of the functions of the Crofters Commission) has been held to be a Court of law—Matheson v. Board of Agriculture, 1917 S. C. 145—see in particular the opinions of the Lord President and the Lord Justice-Clerk—concurring in this matter although differing in the result.

It is not easy to reach a conclusion on these diverse considerations so as to dispose of the point at issue. But the Land Court is a Court of law, and I think that, prima facie at least, it is proper to conclude that all of its members hold judicial office, and, on a balance of the whole considerations above noted, that it is inconsistent with the nature of their office that they should hold on a precarious tenure, or otherwise than ad vitam aut culpam. I further think that this prima facie conclusion is supported and confirmed when regard is paid to the terms of section 3 (4) of the Act of 1911. The incompetency of imposing a precarious tenure is admitted, and I hold, having regard both to the nature of the office and to the terms of the statute, that the imposition of any tenure other than ad vitam aut culpam, subject to section 3 (4) of the Act of 1911, is equally incompetent.

Whether the pursuers are in a strict sense members of the judiciary or not, and whether or not they hold what is termed a munus publicum, I think that they are "public officers" and that they hold offices "of the nature of munera publica." If that is so, then there is the authority of Lord President Inglis for concluding that their appointments are held ad vitam aut culpam. In Hastie v. M'Murtrie, (1889) 16 R. 715, his Lordship says (at p. 731):

"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 irremovable except for fault"

His Lordship was not dealing in terms with the case of an appointment to a statutory office, in relation to which the terms of the statute must, of course, be considered; but I think that this case is covered by the words "the office must be of such a nature that a life appointment is necessarily implied." The statute creates the office, and if it appears that its nature, either at common law or as created by the statute, is such that a life appointment is necessarily implied, then the tenure is ad vitam aut culpam.

It is, of course, possible for the Legislature to create an office of such a nature that at common law the tenure would be ad vitamby necessary implication, and yet at the same time to override the common law by providing that the tenure should not be ad vitambut should be for a fixed period or up to a fixed age. In my opinion, however, such a result can be reached only from express words in the statute, or perhaps by necessary implication from the words of the statute. If the statute is silent on the matter, and if the implication from its words favours rather than negatives a tenure ad vitam,and if the office (whether judicial or not) is of the nature of a munus publicum as explained by Lord President Inglis, then I think that the tenure is ad vitam aut culpam. And, in my opinion, the present case satisfies these conditions.

Servants of the Crown in general hold office only at pleasure. Servants of the Crown who hold judicial offices, however, or offices of the nature of munera publica, are not, and (unless some statute provides otherwise) cannot be, limited to a tenure at pleasure, but hold office ad vitam aut culpam. And, in my opinion, any statutory interference with the life character of the appointment to such an office ought to be strictly construed. If an alleged power to interfere with the life character of the appointment does not appear expressly in the statute—or at least if it is not necessarily implied in the terms of the statute—then, in my judgment, it does not exist.

Many cases of offices held under the Crown were considered and discussed during the debate. Sheriffs-principal and Sheriffs-substitute are judges, and (although the Declaration of 1695 may not refer directly to them, because the Sheriff Court as we know it did not then exist) I think it is clear that they could not competently be appointed "at pleasure," and that, subject to statutory interference, the tenure of their offices is, at common law, ad vitam aut culpam. I understood the Lord Advocate to admit this proposition, and therefore to admit that it would be incompetent to appoint a Sheriff-principal or a Sheriff-substitute subject to a condition for retiral at an antecedently fixed age. In any event, I am of opinion that any such condition in such an appointment would fall to be regarded pro non scripto by the Court. There is, in fact, no statutory interference with the tenure ad vitam aut culpam of the office of a Sheriff. On the contrary, the implication from the statutory provisions affecting tenure of the office is, in my view, clear to the effect that tenure ad vitam aut culpam is recognised. The Sheriff Courts Act, 1907, by section 13, provides appropriate machinery for ascertaining the existence of culpa, and, by authorising removal for culpa as thus ascertained, impliedly prohibits removal upon any other ground. It is especially noteworthy that in the case of a Sheriff the machinery for ascertaining culpa involves resort to Parliament under provisions affording a close parallel to the provisions of section 3 (4) of the Small Landholders Act, 1911. Indeed, the possibilities of removal of a Sheriff under the Sheriff Courts Act appear to be wider than the possibilities of removal of a member of the Land Court under the Small Landholders Act, because in the case of a Sheriff it is expressed that removal may be ordered, not only for inability or misbehaviour, but also for neglect of duty, whereas neglect of duty is not mentioned in the Small Landholders Act. As to the case of a Sheriff-substitute, the Legislature did not deem it necessary to retain parliamentary control of the ascertainment of culpa, and there is no such control; but, as an alternative to control by Parliament, there is control by the Lord President of the Court of Session and the Lord Justice-Clerk. Upon an examination and comparison of these statutory provisions I am of opinion that the statutory tenure of an ordinary member of the Land Court is at least as secure as that of a Sheriff-principal. The imposition of an age limit appears to me to be as clearly incompetent in the one case as in the other.

In England the position of the County Court judges is instructive. By the County Courts Act, 1934 (24 and 25 Geo. V, cap. 53), it is enacted (section 7 (2)):

"A judge shall vacate his office at the end of the completed year of service in the course of which he attains the age of seventy-two years."

A proviso is added enabling the Lord Chancellor to continue the judge in office up to such later age, not exceeding seventy-five years, as he thinks fit. This is an example of statutory interference with the tenure of an office which, but for the statute, would be held ad vitam—and an example which takes the form of directly imposing an age limit. It seems plain that, if the statute itself had not so provided (and if there were no previous statutory warrant), it would have been incompetent for anyone to impose an age limit (whether at seventy-two or any other age) by inserting a condition in the commission granting the office.

In recent legislation there are examples of the creation of statutory offices in which, by statute, the appointment is for a fixed term of years, and, in some such cases at least, the duties of the office are partly judicial. For an example I may refer to the case of the Traffic Commissioners set up by the Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), section 63 (5), (6) and (11). Such examples, in my view, merely show that it is now the practice of Parliament, in cases that are considered suitable, to interfere expressly, with the ad vitamnature which the common law would attribute to any given office. I think that any inference to be drawn from the existence of such cases of express interference favours the pursuers.

The defender founded upon three examples of offices which were represented to be comparable with the office of an ordinary member of the Land Court. In each case the example proved too much, because in each case the tenure of the appointment was said to be statutorily "at pleasure." The references are: Friendly Societies Act, 1896 (59 and 60 Vict. cap. 25), section 1 (3); Income Tax Act, 1918 (8 and 9 Geo. V, cap. 40), section 67; Electricity Supply Act, 1919 (9 and 10 Geo. V, cap. 100), section 1 (2). I observe that the Income Tax Act, 1918, does not expressly declare the tenure of the Special Commissioners to be "at pleasure." It was represented to me, however, that they did in truth hold office only "at pleasure"—and reference was made to, I think, some parliamentary report on the question. It may be that the position of the Special Commissioners is debatable—on the same lines on which the present case has been debated. But as all three of the examples put forward by the defender were put forward as examples of the tenure of judicial or quasi-judicial offices "at pleasure," they do not help the defender because they prove too much. The Legislature may create such a tenure for such an office, but admittedly it has not done so in the present case.

There was an attractive air of reasonableness about the Lord Advocate's contention that a tertium quid, namely, an appointment subject to a fixed age limit, was competent—standing between the two extremes of an appointment at pleasure and an appointment ad vitam ant culpam. He put it that there was nothing fundamentally unconstitutional, and nothing inconsistent with the statute, in making the appointment of an ordinary member of the Land Court conditional upon his retiring at the normal retiring age. There would then be security of tenure until that age—with room for the operation of the statutory code for earlier removal on the ground of inability or misbehaviour. The Lord Advocate further put it that the attachment of a condition for retiral at the normal retiring age was in no way struck at by the considerations which have led to the attachment of a tenure ad vitam aut culpam to certain offices—inasmuch as the antecedent fixing of a retiring age could not undermine the independence and impartiality of the holder of the office. As regards the question of a possible application for an extension of office beyond the age of sixty-five—and its bearing on the independence of the office holder—he said it was an interesting question. but was not raised in the present case. And he submitted that the independence of the judicature has never been, and cannot be, carried to a logical limit; that a theoretical risk of subservience was not enough to condemn a condition such as is here present; and that it was not proper to set too high a standard for freedom from interference.

Much, if not all, of this argument would apply equally well in any question as to the tenure of office of a Sheriff. But I understood the Lord Advocate to admit, and I think it is clear, that it would be incompetent to insert in the commission of a Sheriff a condition for retiral at an antecedently fixed age. And the parliamentary protection of a Sheriff against interference by the executive with the security of his tenure of office is no higher than that of an ordinary member of the Land Court. Where, as here, the Legislature has given such protection by retaining for Parliament the position of arbiter between the officer and the executive on questions of inability or misbehaviour, I doubt whether any standard for freedom from interference by the executive should be held by the Courts to be too high. And the danger of subservience arising out of the imposition of an age limit by the executive appears to me to be a real danger—and to be a danger which requires consideration in the present case. The setting of an age limit by statute is a different matter. If an age limit is set by the executive, then the executive may remove the age limit—and it is immaterial that for this purpose a fresh commission might be required. A member of the Land Court might in such circumstances, on approaching the age of sixty-five, apply for an extension of the period of his tenure in the knowledge that there was no legal impediment to such an extension. He would thus ask for the good offices of the executive—and it so happens that the Secretary of State for Scotland, in whose hands the matter would lie, is the head of the Department of Agriculture, which is constantly litigating in the Land Court. I think that these facts of the situation must be taken into view, although I mention them without making or intending the slightest suggestion that the members of the Land Court have been in any degree influenced in fact by a desire to ingratiate themselves with the Secretary of State for Scotland. And that disclaimer applies equally to my mention of the further fact that in the case that formerly came before Lord Murray there was in the first instance, I understand, an application to the Secretary of State for an extension of office, supported by arguments that were strongly put.

If the imposition of an age limit of sixty-five were to be held competent to the Secretary of State, I note that the resulting position would be that, while he could not without the sanction of Parliament remove a member of the Court before the age of sixty-five, even for inability, he could remove him at his own hand at the age of sixty-five, although the member might then be perfectly able to continue in office.

The apparent reasonableness of the Lord Advocate's contention depended largely on the assumption that the age of sixty-five was what he termed "the normal retiring age." It may be that that is true in the ordinary branches of the Civil Service, and that there are reasons of policy for fixing that age, so that suitable opportunities for promotion in the service may be available from bottom to top. Incidentally, there are superannuation rights in the ordinary branches of the Civil Service. I am, however, unable to accept the assumption that the age of sixty-five is a "normal retiring age" for a person appointed to be a member of the Land Court. As already noted, the statutory retiring age for a County Court judge in England is seventy-two—with the possibility of extension (by the Lord Chancellor) until seventy-five. And if the Secretary of State has the power to fix the age of sixty-five for retiral, I can see nothing to limit his power so as to prevent him from fixing, say, forty-five. He might thus fix a retiring age immediately above the age of the member as at the date of his appointment, and then continue him in office, for short periods at a time, by the issue of successive commissions. The result, in substance although not in form, would be the creation of a tenure "at pleasure," which is admittedly inconsistent with section 3 (4) of the Act of 1911. It may be objected that this is a fanciful view of the situation; and it was argued that to fix what was called an appropriate genuine retiring age was different from fixing arbitrarily a pretended retiring age, such as forty-five. I hope and think that in actual fact it is fanciful to view the situation as one involving any such arbitrary possibility. But the question for me, as I see it, is not whether what the Secretary of State has done or is likely to do is reasonable, but is whether there is any power enabling him at all in the matter. If there is any such power, I cannot see that it is in any way restricted to what may be represented to be "reasonable"—nor for that matter can I see who is to be the judge of what is reasonable.

It is true that there is a financial stick in the hands of the executive with which it might in theory beat a member of the Land Court who displeased it. But this is equally true as regards judges generally. At this point the independence of the judicature may be theoretically incomplete, but I do not think that any conclusion bearing on the present dispute is thereby warranted.

When the Secretary of State appoints a member of the Land Court subject to a retiring age of sixty-five I think it is true to say (as the pursuers argued) that in effect he claims a postponed right of making the appointment terminable at his pleasure. In my judgment he has, no such right. I think that the pursuers are entitled to prevail, and. I shall grant decree accordingly as concluded for.

Among the many useful authorities to which I was referred perhaps I should especially note Dunn v. The Queen, [1896] 1 Q B 116; Gould v. Stuart, [1896] A C 575;Reilly v. The King, [1934] A C 176; Mulvenna v. The Admiralty, 1926 S. C. 842; and Department of Agriculture for Scotland v. Burnett, supra, p. 367.

[1937] SC 860

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