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their offices during the pleasure of the Crown. The respondent in that case, having been gazetted without any special contract to act temporarily as medical officer during the absence on leave of the actual holder of the office, was dismissed by the Government before the leave had expired. It was held that he had no cause of action against the Government. In the case of Dunn v. The Queen (1896), 1 Q. B. 116, it was held that servants of the Crown, civil as well as military, except in special cases where it is otherwise provided by law, hold their offices only during the pleasure of the Crown. In this case a petition of right had been presented, and the case set up by the suppliant was that Sir Claude McDonald, Her Majesty's Commissioner and ConsulGeneral for the Niger Protectorate in Africa, acting on behalf of the Crown, had engaged him in the service of the Crown as consular agent in that region for a period of three years certain, and he claimed damages for having been dismissed before the expiration of that period. It appeared that Sir Claude McDonald himself held office only during the pleasure of the Crown. Mr. Justice Day held that contracts for the service of the Crown were determinable at the pleasure of the Crown, and therefore directed a verdict and judgement for the Crown. The decision was upheld by the Court of Appeal. Subsequently Mr. Dunn brought an action against Sir Claude McDonald, presumably for breach of contract, but the action was dismissed, and the doctrine that an agent who makes a contract on behalf of his principal is liable to the other contracting party for a breach of an implied warrant of his authority to enter into the contract was held inapplicable to a contract made by a public servant acting on behalf of the Crown. Dunn v. McDonald (1897), 1 Q. B. 401, 555. See Jehangir v. S. of S. for India, I. L. R. 27 Bom. 189; Voss v. S. of S. for India, I. L. R. 33 Cal. 669.
It is the practice for the Secretary of State in Council to make a formal contract with persons appointed in England to various branches of the Government service in India, e. g. education officers, forest officers, men in the Geological Survey, and mechanics and artificers on railways and other works, and many of these contracts contain an agreement to keep the men in the service for a term certain, subject to a right of dismissal for particular causes. Whether and how far the principles laid down in the cases of Shenton v. Smith and Dunn v. The Queen apply to these contracts, is a question which in the present state of the authorities cannot be considered free from doubt.
Tenure during pleasure is the ordinary tenure of public servants in England, including those who belong to the permanent civil service,' and the service of a member of the Civil Service of India is expressly declared by his covenant to continue during the pleasure of His Majesty. Tenure during good behaviour is, subject to a few exceptions (e. g. the auditor of Indian accounts : see below, s. 30), confined to persons holding judicial offices. But judges of the Indian high courts are expressly declared by statute to hold during pleasure : see below, s. 97. The difference between the two forms of tenure is that a person holding during good behaviour cannot be removed from his office except for such misconduct as would, in the opinion of a court of justice, justify his removal ; whilst a person holding during pleasure can be removed without any reason for his removal being assigned. See Anson, Law and Custom of the Constitution (second edition), pt. ii. p. 213. See also Willis v. Gipps, 6 State Trials N. S. 311 (1846), as to removal of judicial officers.
21 & 22
REVENUES OF INDIA. 22.-(1) The revenues of India are received for and in the Applica
tion of name of His Majesty, and may, subject to the provisions revenues. embodied in this Digest (a), be applied for the purposes of the Vict. c. 95, government of British India alone. (2) There are to be charged on the revenues of India alone— Vict. o.
106, 85. 2, (a) all the debts of the East India Company ; and
42.] (6) all sums of money, costs, charges, and expenses which, 3. & 22
Vict. c. if the Government of India Act, 1858, had not been 105. passed, would have been payable by the East India Company out of the revenues of India in respect of any treaties, covenants, contracts, grants, or liabilities existing
at the commencement of that Act; and (c) all expenses, debts, and liabilities lawfully contracted
and incurred on account of the government of India (b); and (d) all payments under the Government of India Act, 1858.
(3) For the purposes of this Digest the revenues of India include(a) all the territorial and other revenues of or arising in
British India ; and
territories which would have been receivable by or in the
India Act, 1858, had not been passed ; and
of any court of justice in British India, and all forfeitures
(d) all movable or immovable property (c) in British India
escheating or lapsing for want of an heir or successor (d), and all property in British India devolving as bona
vacantia for want of a rightful owner. (4) All other money vested in, or arising or accruing from property or rights vested in, His Majesty under the Government of India Act, 1858, or to be received or disposed of by the Secretary of State in Council under that Act, must be applied in aid of the revenues of India.
(a) The qualification refers to g. 34, under which there is power to dispose of escheated property.
(b) See Shivabhajan v. Secretary of State for India, I. L. R. 28 Bom 314, 321.
(c) The expression in the Act is ‘real or personal estate,' but ‘movable or immovable property' is more intelligible in India, where the terms are defined by the General Clauses Act (X of 1897, s. 3 (25), (34) ).
(d) As to the circumstances under which property in India may escheat or lapse to the Crown, see Collector of Masulipatam v. Cavaly Vencata Narrainapah, 8 Moore Ind. App. 500; and Ranee Sonet Kowar
v. Mirza Humut Bahadoor, L. R. 3 I. A. 92. Control of 23. The expenditure of the revenues of India, both in Secretary of State
India and elsewhere, is subject to the control of the Secretary
of State in Council, and no grant or appropriation of any penditure of reve
part of those revenues, or of any other property coming into [21 & 22 the possession of the Secretary of State in Council by virtue 106, 8.41.]
of the Government of India Act, 1858, may be made without the concurrence of a majority of votes at a meeting of the Council of India.
This section of the Act of 1858 has given rise to questions as to the relations between the Secretary of State and his council, and between the Secretary of State in Council and the Government of India.
On the first question there was an important debate in the House of Lords on April 29, 1869 (Hansard, 195, pp. 1821-1846), in which the Marquis of Salisbury and the Duke of Argyll took part, and which was made remarkable by a difference of opinion between high legal authorities on the construction of this section, one view, the stricter, being maintained by Lord Cairns and Lord Chelmsford, and a different view by the then Lord Chancellor, Lord Hatherley. The discussion showed that whilst the object, and to some extent the effect, of this section was to impose a constitutional restraint on the powers of the Secretary of State with respect to the expenditure of money, yet this restraint could not be effectively asserted in all cases, especially where
Imperial questions were involved. For instance, the power to make war necessarily involves expenditure of revenues, but is a power for the exercise of which the concurrence of a majority of votes at a meeting of the council cannot be made a necessary condition. The Secretary of State is a member of the Cabinet, and in Cabinet questions the decision of the Cabinet must prevail.
As to the second point, questions have been raised as to the powers of the Indian Legislature to appropriate by Indian Acts to specific objects, provincial or Imperial, sources of income, such as ferry fees and other tolls, process fees, rates on land, licence taxes, and income taxes. But a strict view of the enactment in the Act of 1858 would be inconsistent with the general course of Indian legislation, and would give rise to inconveniences in practice. 24. Except for preventing or repelling actual invasion of Restric
tion on His Majesty's Indian possessions, or under other sudden and
applicaurgent necessity, the revenues of India are not, without the tion of consent of both Houses of Parliament, applicable to defraying to military
operations the expenses of any military operation carried on beyond the
beyond external frontiers of those possessions by His Majesty's forces the
frontier. charged upon those revenues.
(21 & 22 As to the object and effect of this enactment, and in particular as to 106, s. 55.] whether it requires the consent of Parliament to be obtained before war is commenced, see Hansard, 151, July 19, 23, 1858 (Debates on passing of Government of India Act); Hansard, 240, May 20, 21, 23, 1878 (Employment of Indian Troops in Malta); Hansard, 243, December 16, 17, 1878 (Afghan War); Hansard, 272, 273, July 27, 31, 1882 (Egypt); Hansard, 295, March 5, 9, 16, 1885 (Soudan); Hansard, 302, pp. 322-347, January 25, 1886 (Annexation of Upper Burma), July 6, 1896 (Soudan); April 13, 1904 (Tibet); Correspondence as to incidence of cost of Indian troops when employed out of India, 1896 (C. 8131); Anson, Law and Custom of the Constitution, Part ii. p. 361 (second edition). See also s. 16 of this Digest. 25.-(1) Such parts of the revenues of India as are remitted Accounts
of Secreto the United Kingdom, and all money arising or accruing tary of in the United Kingdom from any property or rights vested State with
Bank. in His Majesty for the purposes of the government of India, [21 & 22 or from the sale or disposal thereof, must be paid to the 106, ss. Secretary of State in Council, to be applied for the purposes 2.23
22 & 23 of the Government of India Act, 1858.
s. 3. (2) All such revenues and money must be paid into the 26 & 27 Bank of England to the credit of an account entitled “The
73, s. 16.] Account of the Secretary of State in Council of India.'
Vict. c. 41,
(3) The money placed to the credit of this account is paid out on drafts or orders, either signed by two members of the Council of India and countersigned by the Secretary of State or one of his under secretaries or his assistant under secretary or signed by the accountant-general on the establishment of the Secretary of State in Council or by one of the two senior clerks in the department of that accountant-general and countersigned in such manner as the Secretary of State in Council directs; and any draft or order so signed and countersigned effectually discharges the Bank of England for all money paid thereon.
(4) The Secretary of State in Council may for the payment of current demands keep at the Bank of England such accounts as he deems expedient, and every such account is to be kept in such name and be drawn upon by such person and in such manner as the Secretary of State in Council directs.
(5) There are raised in the books of the Bank of England such accounts as may be necessary in respect of stock vested in the Secretary of State in Council, and any such account is entitled 'The Stock Account of the Secretary of State in Council of India.'
(6) Every account referred to in this section is a public account (a).
(a) This section represents the provisions of the Government of India Act, 1858, as modified by 22 & 23 Vict. C. 41, s. 3, and 26 & 27
Vict. c. 73, s. 16, and by existing practice. Powers of 26. The Secretary of State in Council, by power of attorney attorney for sale or
executed by two members of the Council of India and counterpurchase
signed by the Secretary of State or one of his under secretaries, of stock and re
or his assistant under secretary, may authorize all or any of ceipt of dividends. the cashiers of the Bank of England[21 & 22 Vict. c.
(a) to sell and transfer all or any part of any stock standing 106, s. 47 in the books of the Bank to the account of the Secretary
of State in Council; and 8. 16.]
(6) to purchase and accept stock on any such account ;
26 & 27 Vict. c. 73,