Scottish Court of Session Decisions

This was a Special Case, in which the School Board of the parish of Peebles were parties of the first part, and the Magistrates and Town Council of that royal burgh were the parties of the second part. At the date of the passing of the Education (Scotland) Act, 1872, on the 6th of August of that year there were situated within the royal burgh of Peebles two schools, one of which was termed the Burgh Grammar School, and the other the Burgh English School. Both of these Schools were then, and had been from time immemorial, burgh Schools, under the exclusive control and management of the Magistrates and Council of the burgh, and had been erected and maintained by them out of the common good. Until the passing of the Act it was the custom of the burgh to make contributions to the burgh schools out of the common good, and the sum paid was £100 annually, of which one moiety was paid to the teacher of each school in name of salary. The other emoluments of the teacher of the English school consisted of school fees and parliamentary grant; and of the grammar school of fees only.

The parish of Peebles contains within its limits not only the burgh, but also a considerable landward district. No parochial school was ever established in the parish under the Act 1696, entituled “Act for Settling Schools,” or of any of the subsequent statutes, viz., 43 Geo. III., c. 54,1st and 2d Vict., c. 87, and 24 and 25 Vict., c. 107. And accordingly no assessment for support of parish schools or schoolmasters was ever laid upon the heritors of the landward district of the parish, and they had no concern with the burgh schools. Shortly after the passing of the Education Act, the Board of Education for Scotland, established by that Act, in virtue of the powers conferred on them by the 11th section, ordered that the burgh of Peebles should be dealt with under the Act, and for the purposes thereof, as part of the parish of Peebles. Therefore, in terms of the 8th and 12th sections of the Act, a School Board was elected for the parish of Peebles, including the burgh, and under the provisions of the Act, and particularly

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those contained in sections 24, 25, and 26 the School Board took possession of the two schools on the assumption that by virtue of the Act the schools were transferred to the Board. The Board have ever since continued to be, and still are, in the possession and management of these schools. On the 15th of November 1873 the School Board made application to the Magistrates and Council of the burgh for payment, in pursuance of section 46 of the Act, of the sum of £100, which prior to the passing of the Act it had been the custom of the burgh to contribute to the burgh schools; but under deduction of one-half thereof for the year 1873, in respect the burgh paid the teachers their salaries up to Whitsunday in that year. The Magistrates and Council maintained that they were not liable to pay the sum demanded, or to continue in future years the contribution of £100, and also, that the schools themselves were not, by force of the statute, transferred to the School Board, and that the burgh was entitled to retain or resume possession of the schools.

The questions of law which were submitted for the opinion and judgment of the Court of Session were the following, viz.:—“(1) Whether, in virtue of the provisions of the Education (Scotland) Act, 1872, the Burgh Grammar School and Burgh English School are now vested in and belong to the party hereto of the first part as the School Board of the parish of Peebles? (2) Whether the parties hereto of the second part are bound, in pursuance of the 46th section of the Education (Scotland) Act, 1872, to pay at the term of Martinmas yearly, to the parties hereto of the first part, the sum of £100 sterling, being the sum which it was the custom of the burgh prior to the passing of the said Act to contribute to the Burgh Schools out of the common good of said burgh; the said sum to be applied and administered by the parties hereto of the first part for the purpose of promoting higher instruction.”

Argued for the School Board—The Act, by section 12 and section 24, clearly seems to hand these schools over to the Board. The words “Public School” receive in the interpretation clause a specific meaning. Under even the section (section 24) on which the Magistrates rely, the School Board for the parish becomes that for the burgh also. This is putting it in the supposition even that the Court takes a view of section 26 un-favourable to the parties of the first part.

Argued for the Magistrates—These schools are purely burgh schools, and entirely supported from the common good. We do not need to consider any point but whether the expressions of the Act are strong enough to operate a transfer of property. We maintain that (1) either the Magistrates are intentionally not within the Act, or (2) that there has been on this matter an omission in the Act. Section 18 seems to provide for some such position. The schools in this burgh (section 23) are not within the recited Acts at all. Taking the School Board view, the burgh school would cease to be so, and would become a parish one. [ Lord Neaves—If for educational purposes the burgh has ceased to exist, how can there be a burgh school?] Unless the Act expressly takes these schools out of the management and control of the Magistrates, they remain with them. Now, looking at the Act, section 25 and section 26, we maintain it does not so remove them.

At advising—