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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - School Board of Dunfermline v. Magistrates and town Council of Dunfermline [1878] ScotLR 16_26 (23 October 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/16SLR0026.html Cite as: [1878] ScotLR 16_26, [1878] SLR 16_26 |
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Page: 26↓
*
Prior to 1835 a burgh had been in the custom of contributing to the burgh school (besides the interest of small mortifications in their hands amounting to £19, 3s. 4d.) £ variable sum for the usher's salary, and £9, 0s. 10d. to the rector. It also provided shouse for the rector worth £25 a year. From 1835 to 1860 the burgh was under trust, and some of these payments were interrupted, the rector accepting a composition in lieu of his former allowances. In 1869 the burgh passed a resolution agreeing to pay £100 per annum in aid of the school so long as it “continues to be conducted to the satisfaction of the council.” This was paid till the passing of the Education Act 1872. Held that in the circumstances the burgh was bound to pay in perpetuity each year the sum of £100 in aid of the school (which was held to include the interest on mortifications), and a further sum per annum being the average expenditure for maintaining the buildings for ten years prior to the passing of the Act.
This was a Special Case presented by the School Board and the Magistrates and Town Council of the burgh of Dunfermline in regard to the amount to be paid by the burgh to the School Board in terms of section 46 of the Education Act. For the terms of that section and the construction put upon it by the Court reference is made to the case immediately preceding this ( School Board of Perth v. The Magistrates, ante, p. 22). The special facts presented for the judgment of the Court in this case are sufficiently stated in the opinion of Lord Gifford ( infra).
The burgh had been under trust from 1835 to 1860, but in consequence of mineral estate having developed, the revenue of the common good had increased from £3900 in 1869 to £8000 in 1878.
The Town Council argued that they were not bound to continue payment of the sum of £100, which in 1869 they had resolved to pay permanently on condition of their being satisfied with the conduct of the school. They were further not liable for the annual amount of repairs, this sum not being applicable to higher instruction. They could not now satisfy themselves as to the management of the school, which had been vested in the School Board; and the School Board had altered the school from a primary to a higher class public school, in which only one class of the inhabitants was interested. Payment since 1869 did not constitute custom in the sense of the section.
At advising—
The circumstances, however, are different, and in the present case—that of the royal burgh of Dunfermline—they are somewhat peculiar, the peculiarity principally arising from the fact that from 1835 to 1860 the affairs of the burgh were embarrassed and under trust, and that it is comparatively of recent date that the burgh funds or common good, chiefly by the development of the minerals, have become exceedingly prosperous.
I assume the law and the true reading of the statute to be that followed in the case of
Perth, just now decided (
see p. 22), and in that of
Dunbar (
3 Rettie 631,
13 Scot. Law Rep. 391), and other previous cases. Under the Education Act of 1872 therefore the Magistrates and Town Council of Dunfermline are bound to pay to the School Board of Dunfermline “such sum as it has been the custom of” Dunfermline prior to 1872 “to contribute to the burgh school out of the common good of the burgh, or from other funds under their charge,” and the question is rather one of fact than of law, namely—What was prior to 1872 the annual customary contribution of the burgh
_________________ Footnote _________________ * Decided October 19, 1878.
Page: 27↓
It is admitted that from time immemorial the Magistrates and Town Council of Dunfermline have contributed towards the support of the burgh school and its teachers. Prior to 1833 the customary contributions appear to have been—First, The providing and maintenance of the school buildings, including the rebuilding of the schools when required, and all repairs and annual charges; Second, the provision of a free house for the rector and the maintenance thereof; Third, the payment of an annual sum of £8, 6s. 8d. sterling to each of the rector and the teacher of music, being the interest apparently at 10 per cent. of the sum of £2000 mortified by Queen Anne in 1610; Fourth, an extra annual payment to the rector of £9, 0s. 10d. sterling out of the common good of the burgh; and Fifth, Prior to 1835 the Council made an annual donation towards the salary of an usher out of the common good in addition to the annual interest of 1000 merks Scots mortified in the hands of the Town Council by the Kirk-Session of Dunfermline.
In 1835 the affairs of the burgh became embarrassed and were placed under trust, and this trust subsisted till the year 1860, when the Magistrates and Council were reinstated in the burgh property. During the subsistence of this trust the payments by the Town Council for behoof of the burgh school were necessarily interrupted, at least to some extent. The school buildings and the rector's house, however, seem to have been maintained as before, and the rector for the time accepted a composition in lieu of his former allowances.
In 1860 the trust for the creditors of the burgh was brought to an end and the Magistrates and Council were reinvested, and since that date, chiefly from the workings of minerals in the property, the burgh revenue has very greatly increased. It now exceeds the sum of £8000 per annum.
In 1869 the rectorship became vacant, and the Town Council on 26th July 1869, adopting the recommendations of a school committee which they had appointed, passed a series of resolutions regulating the constitution of the school and fixing the payments which were to be made for behoof of the school from the burgh funds. These resolutions are embodied in the Special Case. Their substance, in so far as payments from the burgh funds are concerned, seems to be the following:—
First — The separate house for the rector is abolished, and the whole buildings, including the rector's house, are to be made available for teaching purposes and put into proper order and repair.
Second—That an annual grant of £100 be given from the corporation funds, but “this grant, although intended to be a permanent endowment so long as the school continues to be conducted to the satisfaction of the Council, may be withdrawn at any time if that condition is not fulfilled.” This grant of £100 per annum is afterwards allocated—£70 to the rector, and £30 to the English master.
Third — That the rector shall also receive £8, 6s. 8d. per annum, being the interest of Queen Anne's mortification.
Fourth—The Town Council also guaranteed that the emoluments of the rector and English master should reach a certain minimum, but, as this was only for the first year after their appointment, it does notmaterially affect the points now in dispute.
The question really is—Are the resolutions of the Magistrates and Town Council on 26th July 1869 to be taken as the measure of the customary payments now to be made by the Town Council to the School Board in terms of the Education Act, or in estimating the customary payment must the resolutions of 26th July 1869 be laid out of view and regard be had solely to the state of matters existing prior to the town's embarrassment in 1835, and thereafter on its reinvestment in 1860.
Now, the words of the statute are that the constant sum to be paid to the School Board shall be the sum which it has been the custom of the burgh to pay for the burgh school prior to 1872, the date of the passing of the Education Act, and it could scarcely be maintained that what followed upon the resolutions of 1869, which only subsisted at most for three years, would constitute in law a permanent custom. The resolutions themselves, although of course binding in a question with any teachers who may have been appointed under them, might have been reconsidered and altered at any time by the Town Council itself. In short, as the measure of the School Board's right under the Education Act is custom and nothing else, I should have great difficulty in holding that the resolutions of 1869, which were entirely pendent upon the will of the Town Council, and which only subsisted for three years, constituted per se a “custom” in the sense of the Education Act.
It does not follow, however, that the resolutions of the Town Council of 1869 are to be entirely disregarded and laid out of view. They do not of themselves, followed by only three years' usage, constitute a “custom,” but they may be, and I think they are, very important as expressing or exhibiting the interpretation given by the Town Council itself of what they held themselves bound to do for behoof of the burgh school; and if there is no unreasonable disproportion in substance and effect between the resolutions of 26th July 1869 and the previous custom of the burgh, going back necessarily before its embarrassment in 1835, and, in such case, having regard to the whole circumstances, I should be disposed to attach very great weight to the resolutions of 1869, and I would not lightly disturb what the Town Council then after the fullest consideration and deliberation resolved to do.
Taking the case as to amounts roughly and generally, the sums paid prior to the town's embarrassment in 1835 seem to have been the following:—
|
Rector's dwelling-house, say, |
£25 |
0 |
0 |
|
Two sums of £8, 6s. 8d. for rector and music teacher, |
16 |
13 |
4 |
|
Additional annual payment, |
9 |
0 |
10 |
|
Maintenance and renewal of school buildings, say, |
30 |
0 |
0 |
|
Contribution towards Usher's salary, including interest of 1000 merks, say, |
10 |
0 |
0 |
|
£90 |
14 |
2 |
Page: 28↓
While by the resolutions of 1869 the Council agreed to pay—
|
(1) Annual grant, |
£100 |
0 |
0 |
|
(2) Interest on Queen Anne's mortification, |
8 |
6 |
8 |
|
(3) Maintenance of school buildings, say as before, |
30 |
0 |
0 |
|
£138 |
6 |
8 |
Now, although the resolutions of 1869 seem to commit the town to a considerably larger annual sum than was paid prior to the town's embarrassment in 1835, still, keeping in view the whole circumstances, the suspension of the town's management from 1835 to 1860, and the present condition of the town's affairs, I do not think that the resolutions of 1869 were an unreasonable reading of the town's customary obligation in reference to the burgh schools, and I think that the Town Council themselves then fairly measured and fixed what the customary obligation was. They dealt liberally with the burgh school, but they were quite entitled if not really bound to do so.
I am therefore of opinion that the sum now to be paid from the common good of the burgh of Dunfermline to the School Board in terms of the 46th section of the Education Act ought to be in conformity with the resolutions of the Town Council of 20th July 1869, and I propose to answer the special questions put accordingly as follows:—
Answer 1st—I think the Magistrates and Town Council are bound to pay to the School Board as from Martinmas 1875, and in perpetuity at the term of Martinmas yearly, the sum of £100, and also the sum of £8, 6s. 8d., being the interest on Queen Anne's mortification, and that from the corporation funds or common good of the burgh.
Answer 2d—I think the Magistrates and Town Council are also bound to pay to the said School Board as from Martinmas 1872, and in perpetuity at Martinmas yearly, the sum of £22, 10s. stg., as arranged by the parties as the average expenditure for maintaining the school buildings.
Answer 3d—But I think the Magistrates and Town Council are not bound to pay the School Board any farther sum, and in particular are not bound to pay any interest on the mortification of 1000 merks, that interest being held to be included in the sum of £100 stg. mentioned in the first answer.
Counsel for School Board— Vary Campbell. Agents— Millar, Robson, & Innes, S. S. C.
Counsel for Town Council— Moncreiff. Agents — Morton, Neilson, & Smart, W.S.
