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Colonial Cases

MacPherson v Municipal Council of Shanghai 1891

Macpherson v Municipal Council

Court of Consuls

Leonard, Mowat and von Loehr, 1 June 1891

Source: North China Herald, 5 June 1891

IN THE COURT OF CONSULS.

Shanghai, 1st June, 1891

MACPHERSON v. THE MUNICIPAL COUNCIL OF SHANGHAI.

Before J. A. LEONARD, Esq., Consul-General U.S.A, R. A. MOWAT, Esq., H.B.M. Acting Consul-General;, and M. VON LOEHR, H.I. German M. Acting Consul-General.

  The Court met in the Court room of the U.S. Consulate-General at 10.30 o'clock a.m.

  Mr. H. Parkes Wilkinson appeared for the Plaintiff, and Mr. R. E. Wainewright for the Defendants.

  The plaintiff's petition was as follows:-

- The plaintiff is a British subject.

- The defendants are the council for the Foreign community of Shanghai in the Empire of China elected by the ratepayers of Shanghai in pursuance of the powers vested in them by the Land Regulations for the Foreign Settlements of Shanghai north of the Yang-king-pang.

- By an agreement dated the 1st day of April in the year 1890 and expressed to be made between the said Council on the one part and the plaintiff on the other part, the said Council agreed to employ the plaintiff as constable of the Police Force of Shanghai, and plaintiff agreed to serve the said Council as constable aforesaid for the period of five years from the 1st of April 1890 and under and subject to the terms and conditions in the said agreement set forth.

-The plaintiff filed with this petition a copy of the said agreement and claims leave to refer to the same at the hearing of this suit.

- The plaintiff served the defendants as constable until the dismissal hereinafter mentioned, and was always ready and willing to continue such service for the remainder of the said term of five years.

- On the 7th April 1891 the defendants or their agents wrongfully and contrary to the terms of the said agreement of the 1st day of April 1890 dismissed the plaintiff from his said employment as constable.

- By reason of the premises the plaintiff has suffered and will suffer very grievously in character and reputation and will lose the wages and advantages that he would have derived from the said service, and the plaintiff therefore prays that the defendants be ordered to pay him the sum of $3,000.

  The answer of the defendants to the petition was as follows:-

-The defendants admit the allegations contained in the 1st, 2nd, and 3rd paragraphs of the petition, and they further say that before signing the agreement in the petition mentioned and thereunto annexed, the plaintiff when first engaged by the defendants' agents and before leaving Scotland for Shanghai signed a document headed "Understanding upon which the undersigned proceeds to Shanghai to join the Municipal Police Force" and which contained amongst others the following clause "(1). The undersigned undertakes to submit to all fines, penalties and punishments customary in the Shanghai Police Force for the maintenance of disciple and good behavior generally. The undersigned has also read and understands the agreement which he is required to sign on arrival in Shanghai as also the particulars of pay attached hereto."

- With reference to the 5th paragraph of the petition the defendants admit that the plaintiff served them as constable until he was dismissed, but they do not admit that he was also ready and willing to continue such service.

- With reference to the 6th paragraph of the petition the defendants admit that the plaintiff was on the 7th day of April 1891 dismissed form his employment as constable, but they deny that such dismissal was wrongful or contrary to the terms of the said agreement in the petition mentioned, and, on the contrary, they say that they were justified in dismissing the plaintiff inasmuch as on the 3rd April, 1891, the plaintiff's behaviour towards Captain-Superintendent McEuen, his superior officer, was insubordinate and insolent, and when on the 6th of the same month he was fined and his promotion temporarily stopped by the Watch Committee of the said Council he refused to submit to the decision of the said Committee.

- The defendants deny that they are in any way liable to the plaintiff on account of any injury he may have sustained or may sustain by reason of his said dismissal.

Mr. Wilkinson opened the case by stating that since the petition and answer had been filed the plaintiff had obtained employment and that he was prepared to settle for the Court costs and nominal damages.

  Mr. Wainewright said that with the defendants the matter was one of principle.  It was claimed that the plaintiff had been wrongfully dismissed.  This defendants denied, and wish to have the Court decide it.

  The method of beginning the case was discussed by Counsel, and the Court deciding that the right to open rested with the plaintiff,

  Mr. Wilkinson said - The plaintiff Angus Macpherson is a Scotchman.  He was a policeman before he came to Shanghai. He has no recollection of signing this preliminary agreement he is alleged to have signed before coming out.  He signed this final agreement.  Afterwards and on the 31st of March last while on duty on Broadway he saw a coolie obstructing the side walk.  He told the coolie to remove the obstruction.  The coolie assaulted Macpherson with a bamboo and ran away. Macpherson followed him into a house and caught hold of him by the pig tail.  It was at this time that the coolie's mistress appeared.  In during all this Angus Macpherson was obeying at least eight of the police regulations. There had been an assault with a weapon, and obstruction to the side walk and a disturbance had been created.  The plaintiff reported the matter to Inspector Kluth at the Hongkew Station, who told him he had done right. Afterward the coolie was sent to Macpherson as he wanted to apologise, and thus prevent the matter from going further.  This Macpherson objected to and insisted that the case be taken before the Mixed Court.

  At the Mixed Court there was a hearing at which evidence was admitted which would not be allowed in any other Court.  The evidence of Mr. Ryelander was as to what his wife had told him.  Inspector Kluth testified as to what Macpherson had said at the station.  All hearsay evidence.  The case was dismissed and the English Assessor made some report regarding Macpherson to the police. I believe he was put on the defaulters' book for having exceeded his duty.

  It appears that the Captain-Superintendent thinks he has acted with great kindness towards Macpherson, but it must be remembered that the police is not a military but a civil body and his mistaken ideas of kindness are due to mistaken ideas of his duties.  However, the plaintiff was summarily brought before the Captain-Superintendent at a sort of military court martial and Inspector Cameron gave his evidence as to what had occurred at the Mixed Court.

  Macpherson was then asked what he had to say for himself.  When attempting to make his statement he was stopped. He then said he did not wish to be judged by the Captain-Superintendent, he wanted the case judged by the British Consul.  Macpherson was bound to obey regulations, yet in bringing a charge against a man under these regulations he is not supported.  Captain McEuen told Macpherson that he would dismiss him.  Macpherson replied that he could not dismiss him as he had done nothing to be dismissed for.  Captain McEuen then said he would refer the matter to the Watch Committee.

  Mr. Wilkinson related what took place at a meeting of the Watch Committee when Macpherson's case was brought before it, and read a copy of the minutes of that meeting together with a Board Order, signed by the Secretary of the Council, dismissing Macpherson.

  The plaintiff was then sworn and testified as follows:

  My name is Angus Macpherson.  I was a police constable in Scotland for seven years before coming here.  My discharges in Scotland are all good.  I do not recollect signing this document showing the particulars of Shanghai police pay.  I agreed to come out to Shanghai as a policeman for the Municipal Council. (Plaintiff's agreement with Municipal Council handed to him.) I signed this agreement.  I was not informed of the existence of a body called the Watch Committee.  (Book of Police Regulations handed to witness.)  This is the book of regulations that was given to me.

  Mr. Wilkinson read from the Police Regulations several paragraphs with which witness said he was familiar.

  Court adjourned till 2.30 p.m.

  The Court met at 2.30 p.m. and immediately adjourned till Tuesday at 2 o'clock p.m.

2nd June.

  The hearing of this case was resumed, Mr. H. P. Wilkinson again appearing for the plaintiff and Mr. R. E. Wainewright for the defendants.

  Plaintiff was called and examined by Mr. Wilkinson at length. He said - On March 31st I saw a coolie with some baskets containing crockery in the middle of Broadway.  I considered it my duty to move him, as there were carriages and jinrickshas passing.  I told him to take them away.  He did so, putting out his tongue at me.  I followed him for a few steps.  He then took up his bamboo and struck me on the head with it, knocking my helmet off.  I had not previously struck him.  I attempted to arrest him, and he ran away towards the Yangtzepoo Road.  I picked up my helmet and followed him to a house in Broadway, which he entered, several yards in front of me.  When I reached the door it was closed and I rang the bell.  The coolie who had assaulted me came to the door, and when I asked him if his master was at home he said "I am the man you want."  I took hold of him by the tail and tried to arrest him.  The mistress of the house then came downstairs.  He pulled me inside the house, into a room.  The lady said he was her coolie; I told her he would be sent for, and left the house.  I went back to my beat, and at the end of it reported the affair to the sergeant on duty.  The same evening I had an interview with Inspector Kluth and Mr. Rylander.  Subsequently I attended the Mixed Court, where I charged the coolie with assaulting me.  The charge was dismissed, and the Assessor (Mr. Mansfield) told me I had no right to enter a foreigner's house.  My name was afterwards placed on the defaulters' book at the police station.

  On Friday, 3rd April, I attended at Capt. McEuen's office.  Captain McEuen and Inspector Kluth were there.  No charge was read over to me. Cameron was called and made a statement about what had occurred at the Mixed Court.  He said that the Magistrate and Assessor had directed that my conduct should be brought to the notice of Capt. McEuen.  This was the first time I had heard of this order.  Capt. McEuen asked me what I had to say.  I replied that I was not guilty of any crime, and if there was any charge against me I wanted to be tried at the British Court, where I could get justice.  I was then proceeding to state the facts of the case, when Capt. McEuen stopped me.  He got up from his chair and said "I'll judge you."  He appeared to be a little excited. I said "No, sir, you can't judge me, because you are not a judge."  He then said "I'll punish you."  I replied that I would not submit at any punishment, as I was not guilty of anything. He then said, "I'll dismiss you" and that he would take me before the Watch Committee.

  I was suspended from duty, and on Monday, 6th April, I appeared before the Watch Committee.  Captain McEuen was present. A charge of being insubordinate was read, and I made a statement of what had occurred.  I said I could produce witnesses of what happened on the Broadway, but the Committee seemed to take very little notice of the statement.  I was not them told of the Committee's decision.  Afterwards I was sent for by Capt. McEuen who told me the decision of the Committee was that I be fined $10 and my promotion to second class, which would be due at the end of 6 months, would be stopped.  I said I had already been suspended for three days, and that I would not submit to the punishment.  He then said I was dismissed, adding that I was a bad-tempered man.  Next day I received a note containing an order by the Committee confirming my dismissal. I was in the Invernessshire constabulary for seven years. I know what the conduct of a police-constable to his superior officer should be.  I did not consider that I was insolent to Captain McEuen.   Mr. Wainewright in cross-examination read statements by Inspector Kluth, Chief Inspector Cameron, and Captain McEuen, which plaintiff admitted to be statements read to him on the occasion of the interview in Captain McEuen's office.  The statements of Inspector Kluth and Cpt. McEuen plaintiff admitted to be in substance correct, with the exception of an allegation by Capt. McEuen that plaintiff's manner was insubordinate and unbecoming a police-constable. The statement of Chief Inspector Cameron, which plaintiff said he did not recollect hearing, was to the effect that at the Mixed Court the boy showed a cut behind the ear and a bruise on the fore-arm.  Both the Magistrate and the Assessor considered the constable had acted with undue violence towards the boy, and that he had no right to enter the house.  They further considered that Macpherson's statement as to having been pulled into the house was untrue; and they desired the matter to be reported to the Captain Superintendent.

  Mr. Wainewright also read a copy of the Watch Committee's minutes describing their interview with plaintiff, which report plaintiff admitted to be correct.  Subsequently the following order was read over to him: "P.C. Macpherson is fined $10 in two monthly instalments of $5, and is to forfeit his promotion to the second class for six months, for wilful misconduct and insubordination on the 3rd April, which the Watch Committee view with serious disapprobation. He is cautioned that any similar misconduct on his part will be visited with instant dismissal."  Plaintiff said he had received a copy of rules, and had read them.

  Mr. Wainewright, in opening the case for the Council, pointed out that they had nothing to do with plaintiff's actions in regard to the coolie.  He was dismissed because he was insolent and insubordinate and refused to submit to his superiors in the way he had contracted to submit to them. With regard to the contention that the Watch Committee could not take the place of the Council n dismissing a policeman, Mr. Wainewrigt pointed out that under No. 23 of the Land Regulations the council were empowered to select out of their number committees for all purposes which could, in the discretion of the Council, be regulated and managed by such committees.  The Watch Committee was appointed under this regulation.

  Captain Superintendent McEuen examined by Mr. Wainewright said - On 3rd April I took down the statements of Inspector Kluth anf Chief Inspector Cameron, in Macpherson's presence and then asked him what he had to say. He did not answer me, but began an altercation with Chief Inspector Cameron.  I again called his attention to the charge.  He came forward and leant on my desk in what I considered to be a threatening manner, and said "I don't intent to submit to any punishment you choose to inflict."  He gave me the impression that if I had been nearer to him he would have struck me.  At that time I had not said a word about being judged nor did I rise from my chair, or prevent him from making any statement about the case.  I finally told him that as he did not intend to submit to any punishment I might inflict, I should recommend the Watch Committee to dismiss him.  I was present at the meeting of the Watch Committee, and the minute read is a correct account of what took place.  Next day I read the Committee's order to Macpherson who said he did not intend to submit to the decision of the Watch Committee.  I reported this to the Watch Committee, who then issued the order dismissing him.  I told Macpherson that I had been considering his case, and that I had not pressed the Watch Committee to dismiss him.

  Cross-examined -All the members of the Police force know that its affairs are managed by the Watch Committee.  There is no mention of that Committee in the agreement with Macpherson.  I believe the Watch Committee have the power of dismissal and the person dismissed has the right of appeal to the whole Council.  It is true that the coolie assaulted the plaintiff, I think the latter was justified in arresting him. At the interview in my office the plaintiff did not attempt to tell the facts of the case.  The Secretary of the Council took notes at the time the plaintiff said he admitted he had been insubordinate. I do not remember I what words this admission was made.

  By the court - The course pursued in dealing with the plaintiff was the ordinary course.

  At the conclusion of the witness's evidence, the Court adjourned till next morning at 10.30.

3RD June.

  The hearing of this case was resumed.

  James George Purdon deposed - I am Chairman of the Municipal Council, and on April 6th I was a member of the Watch Committee, which is appointed by the Council.  Its duties are to take charge of details affecting the police, volunteers and defence generally.  The Committee has power to regulate the discipline of the police force, dismissing members of the force, etc.  The Watch Committee was always understood to have the power of dismissal.  The plaintiff was brought before the Committee on April 6th.  I was Chairman.  Plaintiff was called in, and I told him he was charged with insubordination to his superior officer.  I then read Captain McEuen's report to him.  He repeated what he had said to Captain McEuen - that he would not submit to any punishment Captain McEuen inflicted, as he did not consider he had done anything wrong.  Plaintiff then gave his version of what had occurred between him and the Chinaman.

  He was then sent out of the room, and the Committee deliberated.  The decision they arrived at had nothing to do with the occurrence in Broadway, but was entirely in respect of his insubordinate conduct to Captain McEuen.  I heard plaintiff say anything about being able to call witnesses but I told him we were not trying that case.

  Cross-examined - The Watch Committee hire and dismiss members of the police force, without reference to the council. I think the Committee have the power of refusing to grant a commission in the Volunteers.  On any important question we should exercise our discretion of referring to the council.  I knew what the agreement with the plaintiff was before the meeting.  There is no mention of the Watch Committee in the agreement.  A man dismissed by the Committee has the right of appeal to the Council.  If he does not appeal, he is permanently dismissed. I consider it perfectly fair for Captain McEuen to consult with the Committee before the plaintiff was called into the room.  Capt. McEuen had nothing to do with the decision.  In the case of a head of department the Committee concerned would, I think, bring the matter before the council but I do not consider the dismissal of a policeman such an important matter.

  I consider it was insubordinate for plaintiff to say that he would not submit to any punishment that his senior officer might inflict upon him.  The second report of Capt. McEuen (stating that the plaintiff refused to submit to the decision of the committee) was really unnecessary as the Committee had already decided that if plaintiff did not submit to being fined and having his promotion stopped, he should be instantly dismissed. Plaintiff was not excited when before the Watch Committee, and was perfectly respectful.  When Capt. McEuen amplified his evidence in plaintiff's presence, plaintiff did not demur to what Captain McEuen said.  Plaintiff did not give ne the impression that he was not getting his rights.  

  After Mr. Wilkinson's cross-examination had lasted some time,

  The President asked the learned counsel if he considered it right to examine the witness at such length as to his opinion of the effect of his acts or the acts of the committee.  Were not these legal questions for counsel to submit to the Court afterwards?

  Mr. Wilkinson said he had thought it his duty to his client to examine the witness at some length.  He had now, however, obtained from the witness all that he wanted.

  The Court then adjourned till 2.30 p.m.

  On resuming,

  John Black Cameron deposed - I am Chief Inspector of the Shanghai Municipal Police.  I remember an interview between Capt. McEuen and plaintiff on April 3rd.  I was called in when the interview had been in progress for some  time and made a statement with regard to what had occurred at the Mixed Court.  That statement (produced) is correct.  After I had made it Capt. McEuen asked plaintiff what he had to say, but instead of answering plaintiff spoke to me, saying he could not expect any favour from me as I had a "down" on him.  I replied that I had not.  Capt. McEuen then told plaintiff to speak to him, and Plaintiff leant over the desk and said he did not intend to submit to any punishment Capt. McEuen might inflict on him and that he wanted his case tried in the British Court.  Plaintiff was calm earlier in the interview, when he addressed me he lost his temper.  He spoke to Capt. McEuen in a very insolent manner.  He had previously been standing at attention, as defaulters generally do; but when speaking to Capt. McEuen he leant over the desk in threatening way.  Capt. MEuen did not rise from his chair, and said nothing about judging plaintiff.  I consider plaintiff's conduct was very insubordinate, and his manner very offensive.  At the meeting of the Watch Committee plaintiff and I entered the room at the same time.  When Macpherson was asked about the words he had used to Capt. McEuen, he said "Yes, I did say so; I don't deny it, and I don't consider I did anything wrong."  I think it would be highly prejudicial to the discipline of h force to pass over such conduct as his.

  Cross-examined by Mr. Wilkinson - I had occasion to reprimand plaintiff on a previous occasion, a complaint being made against hi, by a member of the Fire Brigade.  At the Mixed Court the evidence given was that of the constable, the coolie, and an amah, who said she was an eye-witness.  Mr. Rylander made a statement, but the Assessor said he could not accept it in evidence, Mr. Ryelander only saying what his wife told him. I think plaintiff was not justified in entering the house without a warrant, and also in assaulting the coolie after being told by the mistress of the house that the coolie was her servant.  After the inquiry plaintiff asked me to speak to Capt. McEuen on his behalf, but I refused to do so, saying that I would never speak for any man who had spoken like he had to his commanding officer,  Plaintiff again asked me to use my influence, but I again refused, and he went away, saying "Oh, all right; they can only dismiss me, they can't hang me."

  Orlando Kluth, inspector of police, corroborated the last witness's version of the interview in Capt. McEuen's office, and said that plaintiff refused to make a statement.  Plaintiff's manner was eccentric and offensive.  At the meeting of the Watch Committee, Mr. Purdon said it was not necessary to go into what had occurred in Broadway, as that had been already dealt with at the Mixed Court.

  Cross-examined - Macpherson was told that the coolie would be sent to apologise to him on 1st April; but Macpherson objected to this, and said he wanted the case to go to the Mixed Court.

  The Court adjourned till Friday at 10.30.


 

North China Herald, 12 June 1891

COURT OF CONSULS.

Shanghai, 8th June.

Before Messrs. J. A. Leonard, U.S. Consul-General, President; R. A. Mowat, Acting Consul-General for Great Britain; and M. von Loehr, Acting Consul-General for Germany.

MACPHERSON v. SHANGHAI MUNICIPAL COUNCIL.

  The hearing of this case was resumed, Mr. H. P. Wilkinson appearing for the plaintiff and Mr. R. E. Wainewright for the defendants.

  Mr. Wainewright called R. F. Thorburn, Secretary of the Municipal Council, who said - I produce a book called "Standing Orders of the Council and Committees and general instructions to and duties of the officers of the council." These orders are still in force.  The book includes a memorandum on the duties of the Watch Committee, and it expresses correctly the duties of the Watch Committee at the present time.

  Cross-examination - There is a printed form for motions to be put to the meetings of the council. Those forms are scarcely ever used at the Council or at Committees. I drew up the second Board Order without further reference to the Committee, as it was previously decided by the Committee that if plaintiff did not submit to the fine he was to be dismissed.  I sent to the members of the Committee Capt. McEuen's report that plaintiff had refused to be fined, and it was returned with endorsements by three members of the Committee.  Mr. Purdon wrote "We decided yesterday that if Macpherson refused he was to be dismissed.  I suppose it should be formally brought before the whole Council." I told Mr. Purdon next day that it was not necessary to being the dismissal before the whole Council.  At the next meeting of the Council I reported that I had sent out the Board Order.

 Re-examined - The first Board Order (inflicting the fine) was dictated to me by the Chairman of the Committee.  When I received the endorsements, I saw that the majority of the Committee recommended dismissal, and I accordingly issued the second order.

Mr. Wilkinson applied for permission to put in plaintiff's discharges, but Mr. Wainewright objected, on the ground that the discharges were immaterial, and the Court decided that the documents were inadmissible.

  Mr. Wainewright, in addressing the Court for the defendants, pointed out that the Council was constituted under Article 9 of the Land Regulations, which also gave the Council power to appoint Committees.  One of these, the Watch and Defence Committee, was empowered to do everything connected with the management of the police force, including dismissals. This was expressly mentioned as among their powers.  If it were worth while looking to analogy, he might mention that this is the manner in which police forces are managed in England and Scotland, the Councils which govern boroughs and counties appointing Watch Committees, which were authorized in England by Acts of Parliament and were given the power of engagement and dismissal.  The Court had nothing to do with what went on in other places, but no doubt the English system was the one upon which the Shanghai force was founded.

  Mr. Wainewright then read clauses in the Regulations of the Council, showing that the Captain Superintendent had power to inflict a fine not exceeding $10; that the Watch Committee had the power of dismissal; that a constable must readily obey the instructions of his superiors, and that if he receives orders which he thinks unlawful he must appeal to the Council through the Captain Superintendent.  The preliminary agreement which plaintiff signed in Scotland provided that he must submit to all fines and punishments customary in the Shanghai police force for the maintenance of discipline; and there was a similar clause in the later agreement. It was a rather stringent one, but such stringency was necessary for the preservation of discipline among such a large body of men.

  As to the contention that the Committee had no power to act for the Council, it was of no value whatever.  On the authority of Lord Justice Lindley (and no doubt the law was the same in America) a person who had made an agreement with a body of partners could be dismissed by one of those partners provided the others did not object.  It was of course absurd to suppose that a person in the employ of several others could only be dismissed by the whole body of employers; otherwise it would be necessary, for instance, to call a meeting of a railway company to dismiss a porter.  It might be pointed out, too, that under the Land Regulations, three members of the council formed a quorum for the despatch of business, so that the three members of the Watch Committee were enough to have acted as the Council.  

  Proceeding to deal with the facts of the case, Mr. Wainewright submitted that plaintiff's account of the interview with Capt. McEuen could not be accepted as true.  After plaintiff had had time to find out what his rights were, he deliberately repeated the act of insubordination for which he was originally brought before the Committee.

  Mr. Wilkinson, for the plaintiff, submitted that a question of disciple was quite outside the ordinary law of master and servant.  A man's natural right, as laid down in Magna Charta, was to "the judgment of his peers and the law of the land."  That natural right he could limit by making a contract to do or not to do certain things. The Council had made a contract with the plaintiff and had drawn up certain regulations with respect to the duties of the Watch Committee, but those regulations or bye-laws were bad, because they neither defined the offences which might be punished nor the degree of punishment which might be inflicted.

  On the authority of Lumley, the penalties provided in bye-laws must be certain and definite; but in this case they were not.  Apart from his agreement, the Council had no power to punish plaintiff, and the Court has had rules laid before it which were outside that agreement.  The argument on the other side meant that Capt. McEuen was a court for small cases and the Watch Committee was a court of appeal, for which of course there was no authority. No man ought to be punished without a fair and impartial trial, which plaintiff had certainly not had at the hands of Capt. McEuen.  The Council by long usage had arrogated to itself a power for which it had no authority.

  In the course of his argument Mr. Wilkinson, observing that the Clerk of the Court was not present, asked that the Clerk should be directed to take some notes of his (the learned counsel's) argument.

  The President said he was not aware that it was the practice for the Clerk of the Court to take notes of counsel's argument.

  Mr. Wilkinson said he was afraid that as his argument was a somewhat complicated and difficult one, some points might escape the attention of the Court if no notes were taken.

  The President said that the disadvantage of not having all his points thoroughly understood was one under which every advocate laboured.

  Mr. Wilkinson then proceeded with his argument, in the course of which he quoted a case to show that the act of a statutory body must be considered as the act of a majority of that body, and therefore the act of three members of the Watch Committee could not be the act of the majority of the statutory body, the Council.

  At the conclusion of Mr. Wilkinson's address, the Court reserved judgment.


 

North China Herald, 24 July 1891

COURT OF CONSULS.

Before Messrs. J. A. Leonard, (U.S. Consul-General), R. A. Mowat, Esq., (Acting Consul-General for Great Britain) and M. Von Loehr, (Acting Consul-General for Germany).

ANGUS MACPHERSON against THE MUNICIPAL COUNCIL.

Judgment.

Dated Shanghai, July 9th, 1891

 In this case the plaintiff, who was a constable in the Shanghai Police Force, sues the Municipal Council, claiming damages on the ground that his dismissal from the Force was wrongful and contrary to the terms of an agreement made between the plaintiff and the Municipal Council.

  The case having been duly tried and considered, a majority of the Court (the Consul-General for Great Britain dissenting) find that the plaintiff has no cause of action.

  We find that the plaintiff was dismissed by the Watch Committee of the Municipal Council, and that such dismissal was not wrongful.  We are of the opinion that the said Watch Committee had authority, under Regulation XXIII of the Land Regulations and Bye-laws for the Foreign Settlement of Shanghai north of the Yang-king-pang and that the memorandum of Duties undertaken by the Watch Committee, on page 13 of the Standing Orders of the Council and Committees, to so dismiss the plaintiff; that such action of the Watch Committee was the action of the Municipal Council, and was not in violation of the agreement between the plaintiff and the Municipal Council.

  Therefore it is adjudged that the plaintiff recover nothing against the defendants, and that the defendants recover against the plaintiff one hundred dollars, Mexican, ($10) as costs of their defence.

  Court fees, sixty-one dollars. Mexican, ($61) to be paid by the plaintiff.

J. A. LEONARD, U.S. Consul-General.

M. VON LOEHR, H.I.G.M.'s Acting Consul-General at the time of trial.

.................

  Opinion of Mr. Mowat. H.B.M. Acting Consul-General, dissenting from the judgment.

  I regret that I am not able to come to the conclusion which the other members of the Court have arrived at.

  Macpherson was dismissed by the Watch Committee on the 7th April "for wilful misconduct and insubordination." The wilful misconduct and insubordination consisted in his having said on the previous day, when informed that he had been fined that morning by the Watch Committee, that he would not submit to the fine.  He had been, I consider, guilty of insubordination towards the Captain Superintendent on the 3rd April, for which he might either have been fined by the Captain Superintendent or dismissed by the Watch Committee.  The Captain Superintendent thought it was not a case for a fine but for dismissal, and with that view reported it to the Watch Committee.  That body, however, did not dismiss Macpherson, but fined him.  What authority had they to fine him? Article 4 of his agreement with the Council speaks of "punishment awarded against him by the Captain-Superintendent."  So in Rule 20 on page 3 of the "Rules and Regulations of the Shanghai Municipal Police Force," the power of the Watch Committee, apart from dismissal, is confined to authorizing the Captain Superintendent to impose a larger fine that the $10 if he should be of opinion that a fine of that amount would be insufficient.  But, as I have observed, the Captain Superintendent inflicted no fine and did not propose to inflict any; the Watch Committee were not therefore acting under this Rule.

  In my opinion the Watch Committee had no authority to impose the fine or any fine; and I am further of opinion that Macpherson's mere declaration that he would not submit to a fine which was illegally imposed cannot be reasonably or fairly characterized or construed as "wilful misconduct and insubordination."

R. A. MOWAT, H.B.M. Acting Consul-General.

Dated July 13th, 1891.


 

Source: North China Herald, 24 July 1891

THE MACPHERSON CASE.

22nd July.

WHEN we made the first announcement, which seemed to many incredible, of the intended amalgamation of the posts of British Chief Judge and Consul-General, we stated some of the objections which occurred to us at the time. Among them we said:

In the construction of the Land Regulations, whether to the Taotai or the Council, the Consul can take a practical common-sense view, when the Chief Judge would be bound to adhere to a strictly legal interpretation; and we do not always find in practice that the law is the perfection of common-sense."

We did not, however, expect that we should so soon have an instance that would show so perfectly the truth of our objection. Mr. Mowat, the present occupant of the amalgamated post has given us this instance in his dissentient judgment, published yesterday morning, in the case of Macpherson v. the Municipal Council.  In the first place, Mr. Mowat seems to have entirely forgotten that he is an amalgamation, that he sits on the Bench of the Court of Consuls as Consul-General, not as Chief Judge, and in dealing with the case he has closed his consular eye altogether, and regarded it entirely with his judicial eye.  And this judicial eye has had a large beam in it, for as we shall show, Mr. Mowat is not only wrong in the sight of all sensible people in his conclusion, but is actually astray in his facts.

  Mr. Angus Macpherson was a constable in the Shanghai Police Force who overstepped his duties to such an extent that he was brought before the Captain Superintendent, to whom he remarked in a threatening manner that he did not intent to submit to any punishment that might be inflicted on him.  His own words given in his evidence were: "I replied that I was not guilty of any crime, and if there was any charge against me I wanted to be tried at the British Court, where I could get justice."  Subsequently Macpherson said that he would not submit to any punishment. Captain McEuen brought the matter before the Watch Committee, who decided that Macpherson should be fined $10, and his promotion should be stopped. Macpherson again said that he would not submit to the punishment, and was dismissed the force.  He brought an action against the Municipal Council for wrongful dismissal, which was tried last month before the Court of Consuls, consisting of the U.S. Consul-General, Mr. J. A. Leonard, the British Acting Consul-General, Mr. R. A. Mowat, and the German Acting Consul-General, M. von Loehr.  The judgment was published in our columns yesterday morning and was in favour of the Municipal Council, Mr. Mowat dissenting.

  A more disappointing opinion that that given by Mr. Mowat it would be difficult to conceive.  Mr. Mowat allows that Macpherson was guilty of insubordination, for which he might have been fined by the Captain Superintendent or dismissed by the Watch Committee; but he finds that the Captain Superintendent did not fine Macpherson and the Watch Committee did not dismiss him.  Any man of common sense would  say directly that if the Watch Committee have power to inflict the penalty of dismissal they must certainly have power to inflict the minor penalty of a fine; but Mr. Mowat stands on the letter, not on the spirit, and says: "In my opinion the Watch Committee had no authority to impose the fine or any fine; and I am further of opinion that Macpherson's mere declaration that he would not submit to a fine which was illegally imposed cannot be reasonably or fairly characterised or construed as 'wilful misconduct and insubordination.'"

  The Captain Superintendent, says Mr. Mowat, can fine, but the Watch Committee, from whom the Captain Superintendent derives his authority, cannot fine; a point which is Mr. Mowat's own, and was not made by Macpherson's learned counsel.  And a point it really is, for it has no parts and no magnitude.  The Watch Committee, Mr. Mowat allows, has power to authorise the Captain Superintendent to impose a large fine than one of $10, if he should be of opinion that a fine of that amount would be insufficient; but what seems to have entirely upset Mr. Mowat's view is that the Watch Committee, instead of going first through the form of ordering the Captain Superintendent to fine Macpherson $10 and stop his promotion, fixed the fine themselves and had their order read over to Macpherson by the Captain Superintendent whose duty it was to carry it out: "P.C. Macpherson is fined $10 in two monthly instalments,": &c., &c.

  As he refused to accept this punishment, Macpherson was very properly dismissed, and Mr. Leonard and Mr. von Loehr, looking at the matter with the eyes of common sense "find that the plaintiff was dismissed by the Watch Committee of the Municipal Council, and that such dismissal was not wrongful," and they condemn the plaintiff to pay a total sum of one hundred and sixty-one dollars as costs.

  Mr. Mowat dissents, making the subtle distinction that the Watch Committee cannot fine directly, though it can fine through the Captain Superintendent; therefore, he argues, the fine was illegal, therefore it was not insubordination on the part of Macpherson to refuse to submit to it - though this view of the illegality never occurred toi Macpherson or to his legal adviser; and though, as we have already remarked, the order for his being fined was to be executed through the Captain Superintendent.  Solvuntur risu tabulae.  We want no better proof of this of the inconvenience of amalgamating the Consular with the Judicial function.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School