Scottish Court of Session Decisions

The Governors of Bell's Trust, Old Aberdeen, presented a petition for amendment of the scheme of administration of the trust approved of in 1890. The petition bore to he presented “with the consent and concurrence of the Scotch Education Department.”

By the said scheme it was directed, inter alia, that “the governors shall continue to maintain the Bell School in the parish of Old Machar, and shall provide accommodation for not less than 284 children.”

By the Aberdeen Corporation Act 1891, sec. 7, the greater part of the parish of Old Machar, including Old Aberdeen, was added to the royal burgh of Aberdeen; and in terms of the Education (Scotland) Act 1878 (41 and 42 Vict. cap. 78), section 30, the same portion of Old Machar has been annexed by order of the Scotch Education Department to the said burgh for the purposes of the Education Acts. The School Board of Aberdeen have accordingly extended their administration to the said district.

The amended scheme which the Court was asked to sanction provided for the governors ceasing to maintain the Bell School and applying the whole endowment of £2563 to establishing bursaries in connection with the Grammar School of Aberdeen for boys, and the High School of Aberdeen for girls, the said bursaries to be awarded by competitive examination among pupils attending public schools in the unannexed portion of Old Machar, and also within the extended boundaries of the burgh of Aberdeen.

The circumstances in which the application was made are fully set forth in the following report by Mr B. P. Lee, advocate, to whom the petition and process were remitted by the Court:—“The petition, which bears to be with the consent and concurrence of the Scotch Education Department, was boxed on 26th September 1895, and on 16th October 1895 your Lordships ordered advertisement, and intimation to the Lord Advocate and the School Boards of Aberdeen and Old Machar. On the following day—October 17th—this intimation was duly made. At this time the petitioners were acting without the consent of the Education Department, which consent is, by section 20 of the Educational Endowments (Scotland) Act 1882, essential to any application for alteration of the Commissioners' schemes. The petitioners, however, on 16th January 1896, in a note to my Lord President (No. 13 of process), state that ‘since the date of the interlocutor appointing intimation and service, the agent of the petitioners has been in communication with the Scotch Education Department, who have finally consented to the application. My Lords desire that the whole correspondence with the Department be laid before the Court, and it is herewith produced accordingly, that it may be remitted to the reporter along with the rest of the process.’

“The correspondence produced is of considerable length, and divides itself naturally into two parts—before and after the petition was presented. The latter part deals entirely with the irregularity of presuming on the consent of the Department and proceeding without it. The Education Department at first requested that the petition should be withdrawn, but finally, in a letter dated 30th December 1895, Mr Craik wrote, ‘I am directed to state that after communicating with their counsel, my Lords have, although with much hesitation, come to the conclusion that they may allow the petition to proceed, on the distinct understanding that all the correspondence on the matter be submitted to the Court.’

The earlier part of the correspondence with the Education Department deals with the merits of the alterations which the petitioners propose, and concludes on 23rd September 1895 with a letter in which the Department inquires ‘whether there would be any objection, on the part of any of the various parties interested, to the Old Machar bursaries being confined to Old Aberdeen, instead of being thrown open to all the (new) Aberdeen Schools.’ Throughout the whole correspondence there is no indication that the Education Department in any way concurs in the petition, but of course its concurrence is in no way necessary, and has only been claimed on the face of the petition through in advertence.

The various events which have led up to the present application are correctly stated in the petition. They are briefly the amalgamation of the cities of Aberdeen

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and Old Aberdeen, followed by the annexation of the amalgamated portion of Old Machar parish to the burgh of Aberdeen for the purposes of the Education Acts; the necessity for further school accommodation in the district now partially supplied by Bell's School, and the consequent determination of the School Board to build and maintain a new school; the desirability of carrying on in one school the work presently done by Bell's School and the existing Public School; and finally, the inadequacy of the funds of this endowment for the proper maintenance of the school, and especially for putting the buildings into such a condition as to meet the requirements of the Scotch Education Department.

In these circumstances, as the petitioners state, ‘the School Board of Aberdeen have agreed, in the event of your Lordships granting the prayer of the present application, to take over the management of the Endowment School, and to bear the whole expense of such management as and from the date of your Lordships granting the said prayer.’

Your Lordships are asked to sanction a scheme under which the Governors shall cease to maintain their school, and shall devote the whole endowment, amounting to £2563, to the establishment of bursaries in connection with the secondary schools of Aberdeen, the Grammar School for Boys, and the High School for Girls.

So far I think that the circumstances fully justify the application, but the petitioners propose that these bursaries when founded shall not be restricted to children from the parish of Old Machar, to which the endowment belongs, but shall be open to competition alike to scholars from Old Machar and from the extended royal burgh and city of Aberdeen. In support of this extension of area the petitioners state on page 6 that the founder Dr Bell also endowed another school in the city of Aberdeen, which was in 1881 transferred to the School Board of Aberdeen, the endowment being consolidated with others into a fund to be applied by the Town Council of Aberdeen for the promotion of education at the primary and secondary schools under the charge of the Aberdeen School Board. This change was made by Provisional Order under the Endowed Institutions (Scotland) Act 1878, and by section 20 of the Educational Endowments (Scotland) Act 1882 the governing body constituted by such Provisional Order may apply to the Court for alteration. The recent annexation of the great part of Old Machar, for the purposes of the Education Acts, to the burgh of Aberdeen, has, the petitioners say, given to Old Machar a participation in the benefits of Dr Bell's Aberdeen Endowment.

Were the future of the endowment to be determined on the footing that Dr Bell's two endowments were in reality one for the benefit of the city of Aberdeen and the parish of Old Machar, the present proposal would be open to the criticism that while a part of Old Machar is still without the sphere of the Aberdeen School Board and therefore receives no advantage from Dr Bell's Aberdeen endowment, it is not proposed to give that part any preference to the benefits of the Old Machar fund. But any attempt in this process to compensate the city of Aberdeen for the benefits which its extension has conferred upon its neighbours, seems to be precluded by the legal position of the endowment now alone before the Court. The scheme which your Lordships are asked to alter has full operation and effect in the same manner as if it had been enacted in the Educational Endowments (Scotland) Act of 1882, section 32, and can only be altered in terms of the section of that Act under which this petition is presented, section 20, ‘provided that such alteration shall not be contrary to anything contained in’ the Act. Now, section 7 provides that ‘subject to the provisions of this Act it shall be the duty of the Commissioners in reorganising as aforesaid educational endowments, to have special regard to making provision for secondary or higher or technical education in public schools or otherwise in those localities to which the endowments severally belong, or in such manner as to secure to the inhabitants of those localities the benefit of such endowments.… Provided that nothing in this Act contained shall be taken to compel the Commissioners to restrict any bursary, exhibition, scholarship, or other educational benefit, attached to or tenable at any educational institution, to the children of persons resident in the locality where that institution exists.’ There is nothing to suggest that the locality benefited by an endowment may be either extended or restricted by schemes framed under the Act,—the provision in this section apparently referring only to the case of bursaries already attached to a particular school, and allowing in such cases attendance instead of residence to remain the necessary qualification.

In these circumstances I consider that the more limited alteration suggested by the Education Department is the proper one, and that there is no warrant either in the statute or in former cases before your Lordships for the much more serious alteration proposed by the petitioners.”

Argued for the petitioners—(1) It was only fair that the whole of Aberdeen should share in the benefit of this endowment, as it would henceforth bear the whole responsibility. The present endowment conferred no exclusive benefit on the inhabitants of Old Machar; the Bell School was open to all children. At all events, the portion of Old Machar not annexed was so small as not to be entitled to special treatment. (2) The Scotch Education Department had now given its consent to the application.

At advising—