Scottish Court of Session Decisions

This was an action raised by John Somers, teacher of the public (formerly parochial) school of Teviothead, against the School Board of that parish, concluding for declarator that the pursuer, so long as he continued to perform the duties of teacher of the public school of Teviothead, was entitled under an agreement to that effect, constituted by minute of the School Board dated 22d July, and holograph letter of acceptance by him dated 6th August 1873, and what followed thereon, to payment by the defenders and their successors in office of an annual salary of £95 sterling, as also the whole Government grant earned in respect of the school in so far as it exceeded £20 per annum. There were also conclusions for implement of the agreement and for payment.

The two letters referred to in the summons were as follows:—

“ Hawick, 22 d July 1873.

Dear Sir,—At a meeting of the Board held yesterday it was resolved that your salary shall ‘consist of the sum of £95, and that in addition to this you should get the Government grant in so far as that exceeds £20.’—Yours, &c.

Robert Purdom, Clerk.

Teviothead, 6th August 1873.

Dear Sir,—I accept of the terms of salary stated in your letter to me of date 22d July last, but prefer that I should be allowed to draw my salary in the old way till 31st October, which is the end of the school year.—Yours, &c.,

“ John Somers.”

On 2d October 1876 the Board passed a resolution in the following terms:—“That the proportion of the Government grant for the school which the teacher is to receive be for the present limited to the average sum which he has received for the last three years, reserving to the Board the allocation of any sum that may be earned in addition to such average—this arrangement to begin after the expiry of the present school year.”

Allegations were made by the defenders as to the state of efficiency of the school, which were denied by the pursuer, who alleged that there had been no material change of circumstances.

The pursuer pleaded—“The agreement founded on being binding on the defenders, the pursuer is entitled to decree—(1) of declarator; (2) of implement; and (3) of payment, with interest and expenses, all as concluded for.”

The defenders pleaded, inter alia—“(2) The defenders are entitled to absolvitor, with expenses, in respect—1st, that the Government grant is subject to their disposal; 2d, that the resolution founded on has been competently and effectually altered by the defenders. (4) The pursuer's vested interests being saved entire, and the defenders having done nothing to interfere therewith, but, on the contrary, having always been willing to concede these to the pursuer, the present action is unfounded, and ought to be dismissed.”

The Lord Ordinary ( Rutherfurd Clark) pronounced an interlocutor declaring and decerning in terms of the libel. He added this note:—

“ Note.—The pursuer became schoolmaster of the parish of Teviothead in 1871. In July 1873, after the passing of the Education Act, his salary was fixed at £95 per annum, with the addition of the Government grant in so far as it exceeded £20. The question is, whether the pursuer is entitled to claim that salary during his tenure of office, or whether the defenders are entitled to reduce it?

The defenders did not contend that they could touch the salary of £95, which they alleged represented the emoluments which the pursuer was in use to draw before the passing of the Education Act. But they maintained that they are entitled to reduce the proportion of the Government grant or to withdraw it altogether.

In the opinion of the Lord Ordinary, the pursuer

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is right. He thinks that the true meaning of the transaction of 1873 was that the pursuer should receive the emoluments then fixed so long as he held office. No destinction is drawn between one part and another, and in the absence of express stipulation it is difficult to hold that one part was to be permanent and the other at the pleasure of the defenders. It appears to the Lord Ordinary that the salary was attached to the office, and was therefore as permanent as the office.

A subordinate question was raised with reference to a part of the Government grant called the ‘Distance Grant.’ The allowance was made after 1873, but in the opinion of the Lord Ordinary it is a mere addition to the existing Government grant accorded in consequence of the greater difficulty, and therefore of the greater merit, of earning it.”

The defenders reclaimed, and argued—The policy of the Education Act indicated the intention of the Legislature as to the binding character of the acts of a School Board on its successors. A shifting body of persons were erected into a School Board who were subject to the varying views in this manner of the ratepayers. [ Lord Justice-Clerk—Can a School Board bind their successors to any arrangements made as to a bargain estimating emoluments?] It could not be denied that so far as it was a bargain about vested interests it was binding. The Act so provided. But it was different where a bargain was made, not as to vested interests, but as to an extra sum to be paid.

Argued for the respondent—The “old” schoolmaster held a munus publicum, and therefore he enjoyed a right to his emoluments not ex contractu but in virtue of his office. The Carluke case settled the right to fees generically, not to the fees as they stood in 1872. There were certain things reserved to the teacher by law, and these could not be altered save by express contract. This being a bargain for the salary of a public office, was as binding as the original right in place of which it came.

Authorities— Morrison v. Abernethy School Board, July 3, 1876, 3 R. 945; Macfarlane v. School Board of Mochrum, May 27, 1875, 12 Scot. Law Rep. 457; Fraser v. School Board of Carluke, June 14, 1877, 4 R. 892.