-6-
On the other hand there are two authorities which
suggest that suspension from office also deprives the holder of the profits of that office. One is a dictum from a dissenting judgment of Holt, C.J. in Philips v. Bury
(9)
(although the decision of the majority was reversed subsequently by the House of Lords). He was concerned with persons who had been suspended from their fellowships of Exeter College, Oxford. It was a question of whether their consent to an expulsion from the College was still necessary. He said at p.169:
"... it (suspension) is only an impediment to
them from enjoying any benefit from their
office,
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Another case is Bunter v. Cresswell
(10)
which had to
decide whether a sequestration order continued to operate upon
the profits of his benefice
once a clergyman had been suspended.
I find both these cases too particular in their circumstances to be of any general assistance.
At much the same period in time in 1838 to be exact the Attorney and Solicitor General of England were consulted on the question whether the Governor of South Australia had the power to suspend any colonial officer appointed by an Order in Council, and whether notwithstanding an ict of Suspension any such officer would continue de jure to hold his appointment. They wrote:
"In answer, we beg to state that in our opinion the Governor has the power of suspension, and that an officer so suspended would from thenceforth cease to be entitled to exercise any of the functions or to derive any of the enoluments of his office till her Majesty's pleasure should be made known."
However they give no authority for their opinion and for my part I have come to the conclusion that at common law the Crown had no particular right to suspend without pay. Its one exceptional right was and is a right merely to dismiss at pleasure. That is necessary in the public interest: Dunn v. Reg.
(9) (1788) 100 E.R. 186
(10) (1850) 117 E.R. 317 (11) [1896] 1 .B. 116 at 119
(11)
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