123-NLR-NLR-V-41-ALWIS-v.-THIAGARAJAH.pdf
481
Alwis v, Thiagarajah.
1940Present: Hearne J.
ALWIS v. THIAGARAJAH.588—M. M. C. Colombo, 39.
Colombo Municipal Council (Constitution) Ordinance, s. IS (2) (c) (Cap.
194)— Manager, State Mortgage Bank—Not a public office under the
Crown.
The Manager of the State Mortgage Bank does not hold a public officeunder the Crown within the meaning of section 15 (2) (c) of the ColomboMunicipal Council (Constitution) Ordinance.
^ PPEAL from an order* of the Municipal Magistrate of Colombo.
The appellant objected to the double qualification mark credited to therespondent in the list prepared under the provisions of the ColomboMunicipal Council (Constitution) Ordinance on the ground that therespondent, who is-the Manager of the State Mortgage Bank holds apublic office under the Crown.
The Municipal Magistrate disallowed the objection.
H. V. Perera, K.C. (with him J. L. M. Fernando) for the objector,appellant:—The respondent is the Manager of the State Mortgage Bank.The question at issue is in regard to the interpretation of section 15 (2) (c)of the Colombo Municipal Council (Constitution) Ordinance (Cap. 194).The Magistrate has held that the respondent holds a public office, butnot under the Crown. Various sections of the State Mortgage Ordinance(Cap. 277) make it clear that, from beginning to end, the Bank is aGovernment institution and under Government control. The ultimateauthority is the Governor. The Manager is the chief executive officer,is appointed by the Governor and performs public functions, i
It is the Governor who, as representative of the Crown, legislates inCeylon, and the State Council is only an advisory body. The expression“ public office under the Crown ” does not imply that the holder of the.office should be directly appointed by the Crown; he may be appointedby an agent or representative. The words “ under the Crown ” arewords not of limitation but of explanation.
The position of the Crown in a place like Ceylon is considered inBerriedale Keith’s Governments of the British Empire (1936) p. 25. TheCrown is the creator of every office, and all public officers hold officeunder the Crown mediately or immediately—Stephen’s Commentaries(5th ed.) p. 535; 6 Halsbury’s Laws of England (Hailsham ed.), paragraph548; Article 72 of the State Council Order in Council, 1931. For meaningof public office, see Cooray v. de Zoysa1; Henley v. Mayor and Burgessesof Lyme1; Tennant v. Smith’; and Langston v. Glasson*.
N. E. Weerasooria, K. C. (with him E. B. Wickremanaike) fot res-pondent : —The respondent is not a public officer at all. His status isthat of an officer in. a public corporation. A public corporation is iu,t aGovernment institution, although the Government may have some
* (1936) 5 C. L. W. Ill at 120.. 3 (1892) 66 Law Times (N. S.) 327 at 329.
– 130 English Rep. 995 at 1001.* (1891) L. J. Q. B. 356.
18J. N .B 17827 (5/5 2)
482
HEARNE J.—Alwis v. Thiagarajah.
control. The State Mortgage Bank is in the position of a public cor-poration similar to that of the British Broadcasting Corporation andElectricity Board in England. For nature, scope, constitution and powersof public corporations see Gordon’s “ The Public Corporation in GreatBritain
There are a number of other institutions in Ceylon where the Governorhas certain powers, e.g., under the Rubber Control Ordinance (Cap. 300),the Tea Control Ordinance (Cap. 299), the Coconut Products Ordinance(Cap. 129), and the Tea Propaganda Ordinance (Cap. 130). Furtherthere are departments which are state-aided and in which the Governorhas certain powers of control and supervision; but it does not follow thatthose are Government departments, e.g., Municipal Councils, UrbanCouncils, and Village Communities. See particularly sections57, 58, 66, 70, 78, 83, 84, 86-89, 91-93, 103 and 106 of the MunicipalCouncil (Constitution) Ordinance (Cap. 194) and sections 2, 5, 6, 9, 10,12, 14-46, 18—21, 31, 35, 54, 167, 171, 173, 175 186 193 196—214 of theUrban Councils Ordinance (Cap. 195).
Section 26 of the Savings Bank Ordinance (Cap. 278) shows clearlythat members of a public corporation are not public officers, for by thatsection the officers of that bank are specially declared to be public officers.Despite the fact that the funds of that bank are vested in the Governor,it was necessary to legislate that the officers of that institution should beregarded as public officers.
The State Mortgage* Bank provides its own finance and the funds areunder the control of the Directors. The debentures are made a chargeon the Government revenue merely to create credit for the Bank. Whenthe Governor appoints directors and officers he does not act in his executivecapacity as a representative of the Crown but by virtue of special powersconferred on him by legislation.
H. V. Perera, K.C., in reply—if the office is one created by the Crown,it is necessarily a public office under the Crown.
In regard to section 26 of the Savings Bank Ordinance (Cap. 278)it was intended solely to extend the application of section 2 of the Widows''and Orphans Pension Fund Ordinance (Cap. 296) to officers of theSavings Bank.*
Cur. adv. vult.
September 3, 1940. Hearne J.—
The respondent to this appeal was credited with a double qualificationmark in the “list” prepared under the provisions of the ColomboMunicipal Council (Constitution) Ordinance. To this, G. William Alwis,a registered voter, objected on the ground that the respondent, who isthe Manager of the State Mortgage Bank, holds a public office under theCrown and is, therefore, not entitled to the double qualification mark.
The Municipal Magistrate of Colombo took the view that the respondentholds a public office, but not under the Crown, and disallowed theobjection. The objector has now appealed.
In the law of England “ public office ” has been given a very widemeaning for certain purposes, for instance in Quo Warranto proceedings.The rule, as originally understood, was that Quo Warranto was not the
The King v. de Silva.
483
remedy “ unless there was an usurpation actually upon the CrownBut the procedure was later employed to determine disputed questions- of right to Municipal offices and franchises. The sole test then becamewhether the office involved the discharge of-functions of a public nature.Further, in certain statutes, which dealt in part at least with grounds ofdisqualification from public office, the latter, e.g., in the Corrupt andIllegal Practices Prevention Act, was expressly defined as “ an officeunder the Crown ”…. or “ under any acts relating to local
government ”. (Section 64.)
For other purposes, especially in the construction of financial Acts,“ public office ” has been interpreted in a much more narrow sense.A charge on the stipend of a workhouse Chaplain, who was paid by theGuardians out of the rates, was held not to be against public policy, asbeing on the emoluments of a public officer. In. re Mirams “ For ’’
as Cave J. said: “ to make the office a public office, the pay must comeout of national and not local funds.” On the other hand in Bowers v.Harding*, the post of a schoolmaster was held to be a public office,because his salary was paid “ by persons, whose position and duty tomanage the school was recognized by Act of Parliament, and out of sumsprincipally contributed from the taxes for the purpose of making suchpayments …. ”
In my opinion the words of limitation “ under the Crown ” in therelevant Ordinance point to an intention, on the part of the legislature,that the expression “ public office under the Crown ” should be given arestricted, rather than a wide, interpretation.
The respondent undoubtedly performs functions of a public nature.In that sense he holds a public office and his office, as indeed do all publicoffices, derives from the Crown. But, as he is paid by the Bank out of itsown revenue and not the public revenue, he does not. hold, in my view,within the meaning of section 15 (2) (c) of the Colombo Municipal Council(Constitution) Ordinance, “ a public office under the Crown ”.
The appeal is dismissed with costs.
Appeal dismissed.