Scottish Court of Session Decisions

This was a Special Case at the instance of the School Boards of the parish and of the burgh of Selkirk, brought to settle the question whether the parish school was vested in the School Board of the parish or of the burgh. The facts were:—The parish of Selkirk is partly landward and partly burghal, and it includes the Royal Burgh of Selkirk. Prior to the passing of the Act 1696 there were within the parish and burgh of Selkirk a Grammar or Latin School, and an English School. They were carried on under one roof, but were separate schools taught by separate teachers. The question between the parties to this case referred solely to the parish or Latin school. The teacher of the English school was appointed, and his salary paid, by the Corporation alone. The Corporation of the burgh are amongst the largest heritors of the parish. By an agreement between the Corporation and other heritors the Corporation were allowed two votes in the appointment of schoolmaster, and they agreed to pay the half of his salary and to furnish a school-house. In 1780 the Corporation rebuilt the school-house, and the other heritors gave £40 as a donation to defray the expense. In 1791 the school-house was sold by the Corporation, and in terms of the foresaid agreement the site of the present school-house was purchased by the Corporation, in whose name alone the title was taken. With the aid of £100 from the other heritors, and the price of the former school, school-houses were erected by the Corporation on the ground so bought, which was situated within the burgh. The buildings erected in 1791 consisted of two separate school-houses under one roof, the one the English school, known as the Burgh School, and entirely under the charge of the Corporation, the other, the school of Selkirk parish. In 1830, when considerable repairs were made on the parish school, more than half the cost was defrayed by the heritors, exclusive of the Corporation. In 1863 a new burgh school-house was erected on another site, and in 1872 it became vested in the School Board of the burgh; on the removal of the burgh school in 1863 the parish school was enlarged and improved Towards the expense of erecting the new school and enlarging the parish school the landward heritors, exclusive of the Corporation, contributed a large amount.

The school in question was, from its foundation down to the date of the passing of the Education (Scotland) Act, 1872, the only parish school of the parish of Selkirk, and it was treated by all parties as falling under the statutory provisions relating to parish schools; and, in particular, under the provisions of the Acts 43 George III., cap. 54, and 24 and 25 Vict. cap. 107, but subject always to the conditions of the said agreement of 1791. The fabric of the said school was all along maintained at the expense of the Corporation, under the obligation contained in the foresaid agreement supplemented by voluntary contributions; while the furnishings for the school-room were always provided at the expense of the landward heritors (exclusive of the Corporation) by assessment on valued rent. The school is largely resorted to by the children of persons resident within the burgh, and in a lesser proportion by children of persons residing within the landward district.

In the year 1868, on the application of the schoolmaster of the parish of Selkirk, the heritors provided for him a dwelling-house and garden, in terms of the said Acts 43 George III., cap. 54, and 24 and 25 Vict., cap. 107, and this is the house and garden to which the questions in this case have reference. The cost was about £650, one half whereof was paid by the landward heritors other than the Corporation, and the other half by the Corporation, in terms of the 13th section of the said Act of 43 George III. The title of the ground feued for the purpose was taken to the heritors of the parish and their successors and assignees. Before 1868 an allowance was in use to be made to the schoolmaster in lieu of a house in terms of said Act, which was paid in equal proportions by the landward heritors and by the Corporation; and the salary of the schoolmaster was paid by the same parties and in the like proportions, in terms of the agreement of 1791 and Act of Parliament.

Under the Education (Scotland) Act, 1872, a School Board (the first party to this case) was elected for the parish of Selkirk, and another School Board (the second party hereto) was elected for the burgh of Selkirk. On the said Act coming into operation, both parties proceeded on

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the assumption that the school in question, as the school of the parish, became vested in the Parish Board, and the Burgh School in the Burgh Board. Accordingly the Parish Board entered into possession of the said school and schoolmaster's house, and carried on the management thereof.

In October 1873, the Burgh School Board, with the view of obtaining additional school accommodation for the burgh, opened negotiations with the Parish School Board for the purchase of the school in question and said dwelling-house and garden, upon the footing that these subjects had vested in the Parish School Board under the Education Act. The terms of sale and transfer were agreed upon by the parties, and the Education Board having signified their approval thereof, and of a proposed new parish school and schoolmaster's house to be erected by the Parish Board, in lieu of said school and schoolmaster's house and garden on another site, the Burgh Board entered upon the possession and management of the subjects as at Martinmas 1873. Thereafter a doubt was raised by the Burgh Board as to whether the Education Act had the effect of vesting the subjects in the first party, and the parties accordingly agreed to cancel the contract, and to submit the question to the decision of the Court.

The first party hereto maintained that the said school is the Parish School of the landward district of a parish partly landward and partly burghal, and as such is, together with teachers' houses and land attached thereto, vested in them and under their management as the School Board of the parish of Selkirk, under the provisions of the Education (Scotland) Act, 1872, and, in particular, under the 23d section of that Act. The second party maintained that the school is not and has never been the parish school of the landward district within the meaning of the 23d section, and that the school, with its pertinents, being situated in the burgh of Selkirk, is vested in them and under their management as the Burgh School Board, in terms of the Act.

The questions submitted for the opinion of the Court were:—“1. Whether, under the provisions of the Education (Scotland) Act, 1872, the school in question, together with teachers' house and land attached thereto, or either of them, is vested in and under the management of the party hereto of the first part as the School Board of the Parish of Selkirk? Or, 2. Whether, under the provisions of the said Act, the said subjects, or any part thereof, are vested in and under the management of the party hereto of the second part, as the School Board of the Burgh of Selkirk?”

At advising—