Scottish Court of Session Decisions

This was a petition to the Sheriff of Roxburgh, in which the School Board of the parish of Kelso, and David Broomfield, writer, Kelso, their clerk, were petitioners, and George Duncan Hunter, teacher of the Kelso Public School, was respondent.

The petition was in the following terms:—“The petitioners humbly showeth, that Kelso Public School is vested in and under the management of the petitioners, the School Board of the parish of Kelso, who are bound to maintain and keep the same efficient, in terms of “The Education (Scotland) Act 1872.” That George Duncan Hunter, the respondent, is the teacher thereof. That the petitioners found it necessary, in the discharge of the duties devolving on them under said Act, to establish a system of visitation to the schools under their charge, including the school before mentioned, such visitations being made at irregular intervals during school hours, and by two or more members of the Board, under the authority of the Board, at a time. That the respondent objected to such visitations being made to the said school of which he is teacher; and on or about the 13th day of March last he refused to admit to the school-rooms two members of the Board, Mr Charles Robson and Mr James Brunton, although they intimated to him, agreeably to the fact, that they had been deputed by the Board to make such visitation for the purpose of inspecting the school, and ascertaining for the information of the Board that the work therein was being properly conducted. That in consequence of such refusal the said visitation is frustrated. That the unwarrantable and illegal course of conduct thus pursued by the respondent not only obstructs and hinders the petitioners from efficiently or properly discharging the duties imposed on them by the Act of Parliament, but injuriously affects the educational interest of the parish, and frustrates the provisions and intentions of the said Act. In these circumstances the present application has become necessary. May it therefore please your Lordship to appoint a copy of this petition and deliverance to follow hereon to be served upon the respondent, the said George Duncan Hunter, and to ordain him to enter appearance within a short space after such service, with certification; and thereafter, on again advising this petition, whether such appearance should have been entered or not, to interdict, prohibit, and discharge the said George Duncan Hunter, or others

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in his employment, from refusing admission to the said School Board, or members thereof under the authority of the Board, into the said school during school hours, whenever and so often as they may deem necessary in the discharge of their duties under the Act of Parliament, or in any other way obstructing the School Board in effectually carrying out the visitations referred to; and in the meantime to grant interim interdict as craved, and to find the respondent liable in expenses, and to decern therefor.”

The following defence was stated:—The defender's procurator stated that the defence was that there was no authority in the Education Act of 1872, or in the Education Code for Scotland, authorising a School Board to make visits of surprise to a school under their charge, or to interfere with the schoolmaster appointed to a public school before the passing of that Act, otherwise than directed by that Act.”

The Sheriff-Substitute ( Russell) pronounced the following interlocutor:—

“ Jedburgh, 22 d June 1874.—Having heard parties' procurators, and thereafter considered the whole process—Finds that the petitioners, as the School Board duly appointed for the parish of Kelso, and their clerk, are in titulo to raise the questions presented in this petition; that the school therein referred to has been effectually transferred to and vested in the petitioners, and came under their management in terms of the Education (Scotland) Act, 1872; that the respondent was duly appointed on 15th October 1858, and still continues to be the principal teacher in the said school: Finds it admitted that the respondent has claimed and asserted the right to prevent any members of the School Board, even although specially nominated by the Board for that duty, from visiting the said school during school hours without previous notice given to the respondent; and that, in particular, on the 13th March last he informed two members of the School Board (who had been deputed by the Board to make such a visitation of the school) that no such visits, made without previous notice, would be permitted by him, and that in consequence of the conduct of the respondent, it became necessary for the said School Board to present this petition: Finds, as matter of law, that, in terms of the provisions of the said Act, the said school being under the management of the said School Board, and it being their duty to maintain the same and keep it in a state of efficiency, and to satisfy themselves that the rules applicable to it are duly observed, it is lawful to the said Board, by means of managers duly appointed by them in terms of the Act, or by means of any committee or deputation of their number, or otherwise in any reasonable manner, to visit the school during school hours so often as they shall deem it their duty to do so: Therefore repels the defences, and declares the interdict already granted ad interim perpetual, and decerns; and in the circumstances finds no expenses due to or by either party.

Note.—The only question involved in this case is, whether it is competent to a School Board to visit, by a committee or deputation of their number, or by managers appointed by them, or in any other reasonable manner, the schools transferred to them as ‘public schools’ under the Education (Scotland) Act, 1872. The Act confers on the Board the management of the schools, and especially provides (sect. 23) ‘That the Board shall, with respect to the school management and the election of teachers, and generally with respect to all powers, obligations, and duties in regard to such schools now vested in or incumbent on the heritors and the minister of the parish, supersede and come in place of such heritors and minister; and that all jurisdiction, power, and authority possessed or exerrecised by the Presbyteries or other church courts with respect to any public schools of Scotland are abolished.’ The Act of King William (1696), and that of Geo. III. (1803), and that of 24 and 25 Vict., c. 107 (1861), are all repealed by section 78 of the Act now under consideration.

The only serious difficulty which occurs in reference to the general questions involved in this case arises from the circumstance that while all the powers of presbyteries and other church courts with respect to public schools are abolished, no corresponding powers are by the Act expressly or in general terms conferred on School Boards; the visitation of schools having been in law and practice one of the well recognised powers and duties of presbyteries. But considering the duties imposed on School Boards by this Act, and by the code of regulations for Scotland issued (in terms of the Act) by the Scotch Education Department, the Sheriff-substitute is satisfied that the fair construction of the Act, as a whole, leads to the conclusion that it is within the power of a School Board, by any committee of their number, or otherwise in any reasonable manner, to visit any of the schools under their management so often as they shall deem this to be necessary, in order to satisfy themselves as to the condition of the school as respects its discipline, the due observance of the prescribed hours of teaching, and the observance of the regulations applicable to it. In particular, it is the duty of the Board (sect. 36 of the Act) to keep the school efficient, and to inform themselves as to the competency, fitness, and efficiency of the teacher (sect. 60); and in the Education Code duties are imposed as a condition of sharing in the Parliamentary grants, which seem to imply not only visits with, but also visits without previous notice to teacher. By the Code (sect. 67) it is provided that ‘the managers must annually state whether the teacher's character, conduct, and attention to duty have been satisfactory;’ and there are other provisions, which need not here be specified, that lead to the same result. It is to be presumed that the members of a School Board will exercise the right in question with reasonable moderation and a due regard to the position and the feelings of the teacher, so as neither needlessly to interfere with his teaching nor wound his susceptibilities. In the present case no facts are disclosed leading to the inference that such moderation has not been observed by the Board; and, on the other hand, the teacher appears to have assumed almost a defiant attitude towards the Board. At all events, no excess on their part is so stated as to affect the judgment in this case.

As to the expenses, according to the usual rule the respondent would be liable in them. But it is to be considered that (so far as appears) the question raised here has not hitherto been decided in any competent Court; and that, from some correspondence between the School Board for Greenlaw and the Scotch Education Board, referred to in the debate, the respondent may have not unreasonably regarded himself as justified in disputing the powers of visitation claimed by the School

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Board. Due weight being given to these considerations, no expenses have been found due to either party.”

The petitioner appealed to the Sheriff, who pronounced this interlocutor:—

“ Edinburgh, 31 st October 1874.—The Sheriff having considered the closed record and whole process, dismisses the petition as incompetent; finds the petitioners liable in expenses to the respondent; allows an account thereof to be given in, and remits the same when lodged to the Auditor of Court to tax and report.

Note.—The petitioners are the School Board of the parish of Kelso. The respondent is schoolmaster of the parish of Kelso and rector of the Kelso Grammar School, appointed by the heritors and minister of the parish under the Act 43 George III., cap. 54, in October 1858. The petitioners say that this school (they do not distinguish between them) is vested in them by virtue of the Education (Scotland) Act, 1872. The present petition prays the Court to ‘interdict, prohibit, and discharge the said George Duncan Hunter, or others in his employment, from refusing admission to the said School Board, or members thereof, into the said school during school hours, whenever and so often as they may deem necessary, in the discharge of their duties under the Act of Parliament, or in any way obstructing the School Board in effectually carrying out the visitations referred to.’ An application to interdict a person from refusing to do something is quite new in the Sheriff's experience. It comes in effect to a prayer to compel the person against whom it is directed to do what he is said to have refused to do. This is a prayer or demand inappropriate to a process of interdict, the proper and legitimate object of which is to continue or protect from innovation a lawful or established and existing possession. The concluding part of the prayer is only auxiliary to this, and by itself it would not be competent, as being much too vague and general for an interdict. But further, when examined into, it is obvious that the object of this petition is to obtain judicial sanction to and power to enforce at the instance of the petitioners what they call ‘a system of visitation to the schools under their charge,’ which they say they have established, and which consists of ‘visits of surprise’ to the school during school hours. They do not say in the petition that this system of visitation has been in use for any length of time. But they plead, and in the debate before the Sheriff they maintained, that, as succeeding under section 23 of the statute to all the powers and duties of management of the parish schools, formerly vested in and incumbent on the heritors and the ministers by law, they have a right to establish and carry out this system of visitation. This right is what they seek to have authorised and given effect to by the present process.

The Sheriff does not feel himself called upon to say whether School Boards, as established since 1872, have or have not such a right of visitation. There has not been any time yet for any such right, if claimed generally, to have the sanction of use and the benefit of possession. The Sheriff sees many reasons which may be urged against the arbitrary exercise of such a right. But what he is satisfied of is, that he cannot be called on in this form of process to pronounce any judgment affirmative of the right claimed. Such judgment would be a declaratory one, which is not within his competency. And this would be the effect of any judgment in terms of the prayer of the petition.

He has therefore no hesitation in dismissing the petition as incompetent. And as the petitioners have chosen to resort to a novel and unusual form of action, altogether inapplicable and incompetent, the Sheriff is of opinion they must pay all the expenses thereby occasioned to the other party.”

The petitioners appealed to the Court of Session, and amended the petition to the effect of substituting, in the prayer of the petiton, the words “to interdict, prohibit, and discharge the said George Duncan Hunter or others in his employment from preventing or excluding the School Board, or members thereof under the authority of the Board, from entering the said school during school hours” for the corresponding clause in the original petition.

Argued for them—By sections 23 and 26 of the Education Act the management of parish schools was vested in the School Board. By sections 27, 29, and 36 of the Act the duties of the School Board were to ascertain the extent and quality of the provisions for supplying the educational requirements of the parish, and to maintain and keep efficient the educational apparatus. Then section 60 empowered the School Board to proceed against a teacher inter alia for inefficiency. All these duties imposed upon the School Board, and especially the last, implied that they were empowered to ascertain such facts as were requisite to enable them to perform these duties; and how could they ascertain, for example, whether or not the teacher was efficient but by visiting the school? To enable them to perform their statutory duties the right of the members of the School Board to visit the schools was clear, and they were therefore entitled to the interdict craved against the Schoolmaster. By section 23 of the Education Act the powers of the Presbytery were abolished, but the powers of the heritors and minister were transferred to the School Board. Now, the minister of the parish, apart from the Presbytery, had power to visit the schools and inspect the teaching. So, apart from the new and special provisions of the Act, this power was vested in the School Board.

Argued for the respondent—The proper subject for an interdict was a clear and undoubted right. There was no such right here. The duties of the School Board under the Act were to provide school accommodation sufficient for the wants of the parish, and to appoint a duly qualified teacher. But the School Board had no inspectorial power. They were not entitled themselves to form a judgment as to the efficiency of the teacher. If they had reason to suspect that the teacher was inefficient they had their remedy under the Act of obtaining a report from Her Majesty's Inspector of Schools. Thus in visiting the school in an inspectorial capacity the School Board were exceeding their power, and could not ask interdict against the teacher for excluding them. As to the argument that the School Board had succeeded to the right which the minister of the parish had irrespective of the Presbytery, the plain answer was that he had no such right. As a matter of practice the minister of the parish did visit the schools and superintend the teaching, but that was a mere usage founded on utility, and had no foundation or warrant in law.

At advising—