Scottish Court of Session Decisions

This action was brought by Mr Macfarlane, schoolmaster of the parish of Mochrum, against the School Beard for that parish and the Board of Education for Scotland, for reduction of (1) a resolution of the School Board of that parish, dated January 6, 1875; removing him from the office of teacher; and (2) a minute by the Board of Education, dated February 26, 1875, confirming that resolution.

The material averments of the pursuer were as follows:—“(Cond. 4.) In the month of March 1874 the School Board … instructed their clerk to write to the Department requesting that Her Majesty's inspector make a special report regarding the Mochrum public school and its teacher. The inspector subsequently visited the school on 14th April 1874, and made a favourable report, and a government certificate of competency was sent to the pursuer as the result of said inspection. The School Board took no action, however, on said inspection and report.” (Cond. 5.) “On 3d June 1874 the School Board … resolved to ask for another special report on the Mochrum School and teacher, and they did so without coming to any resolution to the effect that the teacher was inefficient, as they were bound to do in terms of the 60th section of ‘The Education (Scotland) Act, 1872,’ and although not two months had elapsed since the last report. In consequence of said request Her Majesty's inspector made a second inspection of the school on 27th October 1874, and thereafter issued his report thereon: said report is in the following terms:—

‘In accordance with my instructions to report on Mochrum public school under section 66, I visited it on the 14th April 1874. Taking into consideration that it was its first inspection, I was able to report that it made on the whole a fair appearance in elementary work. I was afterwards instructed to report on the school under section 60 (2), and accordingly I again visited it on the 27th October 1874.

‘As on the occasion of my former visit, I found that the examination schedule was not filled up, and that there were no registers, no time table, and no pupil teachers, although two candidates had been admitted at the previous inspection.

‘There were 70 scholars present, and of these 39 were presented for examination under standards I. II. III. and IV., the same standards under which the scholars present in April were examined. I had no means of determining whether the same scholars were examined under the same standards on both occasions. The following were the results of the examination:—

‘Standard I.—13 scholars. Reading and penmanship, on the whole, fair. Spelling and arithmetic,

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moderate. Notation and subtraction, very imperfect.

‘Standard II.—10 scholars. Reading and penmanship, fair. Spelling, moderate. Notation, very imperfect.

‘Standard III.—10 scholars. Reading and penmanship, fair. 1 failed in writing, and none made a respectable pass in arithmetic.

‘Standard IV.—6 scholars. Their knowledge of grammar was so imperfect that only 1 was fairly entitled to a pass in reading. 3 failed in writing and 4 in arithmetic.

‘Grammar, history, and geography (Article 19 c.) were subjects quite unknown.

‘The children under 7 read pretty fairly.

‘On the whole, I consider that the resolution come to by the Mochrum School Board is borne out by the state of the school, and the result of the teacher's labours. ’

(Condescendence 6) “Said report was not made in accordance with the requirements of subsection 2 of section 60 of ‘The Education (Scotland) Act, 1872,’ inasmuch as it is not a report upon the teacher, but only upon the school. Said report was also unjust and unfair to the pursuer, owing to its having proceeded on an inspection which was made at a time when, owing to the actings of the School Board, and partly to other circumstances, the school was in a disorganised condition. A few days before the School Board requested the second inspection, they collected the accumulated school fees of three or four quarters, and charged fees which were not only higher than had been customary, but also very much higher than they themselves had advertised would be charged. In consequence of this about thirty of the scholars, chiefly those who were the most advanced, were withdrawn from the school. The School Board next resolved that the school vacation was to commence on 17th June, which was an unprecedentedly early date for an agricultural district, and they directed the school to be re-opened on 27th July, so near the commencement of the corn and potato harvest as to be quite fatal to the regular attendance of pupils in a country parish. The irregularity of attendance was further increased by the outbreak of an epidemio of whooping-cough, by which about fifty of the pupils were kept from school. The School Board had at first directed the pursuer to teach according to use and wont, but after the inspection in April they changed the system, and required the pursuer to teach according to the Scotch Education Code, 1873, and the new system was only beginning to get into working order when the school was broken up for the vacation. The said inspection of 27th October was thus made at a time when it was impossible for any teacher to have got his pupils into a fit state to undergo examination under a new system which had been so recently introduced, and under which, from interruption and irregularity of attendance, the teacher had not proper opportunities for preparing the pupils to undergo an examination. The members of the School Board were well aware of the state of things in the school, and in that knowledge they maliciously and oppressively requested a report from Her Majesty's inspector, with the purpose and in the expectation of obtaining a report from him unfavourable as to the state of the school, and upon which they might therefore venture to dismiss the pursuer. The pursuer believes and avers that the School Board, or the majority thereof, and notably the Rev. William Allan, the parish minister (to whose recent induction into the parish the pursuer, as an elder of the congregation, had been opposed, and who took the leading part both in public and in private in promoting the pretended dismissal of the pursuer), were actuated by malice and ill-will towards him in requesting a report at the time they did, when by their own actings they had thrown the school into a state of disorganisation.” (Cond. 7.) “It was quite impossible for the pursuer, from the copy report furnished to him, to know why he should be dismissed, or upon what ground he was being found fault with. Said report does not even bear that he was inefficient; and it refers to a resolution, no copy of which was furnished to him, and of the terms of which he was entirely ignorant. The pursuer has thus been deprived of the opportunity to defend himself, which it was intended should be afforded to him by said Act.”

The School Board explained that the visit of the inspector on 14th April was made in the ordinary course of his duty. The only special report was that of 27th October, and the “resolution” referred to therein was the resolution of March 1874 to require a special report.

The pursuer pleaded:—“1. The minute or judgment of the School Board of Mochrum, of date 6th January 1875, ought to be reduced in respect—(1) That the report upon which it proceeded was not a proper report in terms of ‘The Education (Scotland) Act, 1872:’ (2) That no proper copy of said report was furnished to the pursuer in terms of said Act: (3) That said judgment was malicious and unjust, and proceeded on a report which was itself unjust, and had been maliciously, oppressively, and unjustly obtained by the said School Board at the time it was so obtained: (4) That the whole proceedings of the School Board towards the pursuer in obtaining said report, and in dismissing the pursuer, were oppressive, malicious, and contrary to justice. 2. The minute or deliverance of the Board of Education for Scotland, dated 26th February 1875, ought to be reduced in respect—(1) That it followed upon the inept and wrongous proceedings mentioned in the foregoing plea: (2) That it proceeded upon reasons furnished by the School Board, which were incorrect in point of fact, and which the pursuer had no opportunity of answering: (3) That it was oppressive and unjust to the pursuer.”

The School Board pleaded:—“(1) The special report of Her Majesty's inspector not being reduced, the present action is excluded. (2) The School Board's resolution removing the pursuer, and the confirmation thereof by the Board of Education, not being subject to the review of the Court, this action is excluded. (3) The pursuer's averments being irrelevant and insufficient, the action should be dismissed.”

The Board of Education pleaded:—“(1) The pursuer's statements are irrelevant and insufficient to warrant the conclusions of the summons. (2) The deliverance of the Board of Education for Scotland sought to be reduced, having been pronounced in exercise of the jurisdiction conferred upon them by the said statute, is not subject to review, and the present action is incompetent.

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The Lord Ordinary pronounced the following interlocutor:—

Edinburgh, 17th July 1875.—The Lord Ordinary having heard the counsel for the parties on the record which has been closed on the summons and preliminary defences, Finds that the action is not excluded or incompetent on any of the grounds stated in said defences: Therefore repels the defences so far as preliminary, reserving their effect as defences on the merits for future consideration; Appoints the defenders, the School Board of Mochrum, to satisfy the production by the first box-day in the ensuing vacation: And in respect the defenders, the Board of Education, state that they intend to reclaim against this interlocutor—grants leave to them to reclaim, and finds them liable in the expenses of the preliminary discussion, and appoints an account of said expenses to be lodged, and remits the same when lodged to the Auditor of Court to tax and to report.

Note.—The School Board of Mochrum some months ago, under sec. 60 of the Education (Scotland) Act, 1872, pronounced a judgment, which was confirmed by the Board of Education, removing from his office the pursuer, who had been schoolmaster of the parish since 1848. In the present action the pursuer challenges the validity of the judgment of the School Board on various grounds, one of them being that the report of Her Majesty's inspector on which it proceeded was not a proper report in terms of the statute; and another that the whole proceedings of the School Board in procuring the report and dismissing the pursuer were oppressive, malicious, and contrary to justice. And he challenges the deliverance of the Board of Education on the ground that the judgment which it confirmed was inept; that the deliverance proceeded upon reasons furnished by the School Board which were incorrect in point of fact, and which the pursuer had no opportunity of answering; and that it was oppressive and unjust to the pursuer.

In all the cases of removal of a schoolmaster under the Education Act which have hitherto been before the Court, the validity of the judgment of removal has invariably been assumed, and the only question has been whether the removal was occasioned by such fault on the part of the teacher as to disentitle him to a retiring allowance. In the present case, however, the schoolmaster challenges the validity of his removal altogether, and he concludes for reduction of the minute or judgment of the School Board dismissing him, and of the minute or deliverance of the Board of Education confirming that judgment, and for declarator that he is the teacher of the late parochial school of Mochrum, and that he alone is entitled to fulfil the duties of said office, and to receive the emoluments appertaining to him as such teacher.

The pursuer has called as defenders both the School Board and the Board of Education, and preliminary defences have been lodged for both defenders against satisfying the production. Several of the pleas are manifestly defences upon the merits, and do not here require to be farther noticed. The pleas which the School Board maintain as preliminary and as excluding the action, are (1) That the special report of Her Majesty's Inspector upon which their judgment proceeded is not reduced; and (2) that their own judgment and the confirmation thereof by the Board of Education are not subject to the review of this Court. The Board of Education pleads that the action is incompetent, in respect that their deliverance which is sought to be reduced was pronounced in exercise of the jurisdiction conferred upon them by the statute, and is not subject to review.

“The objection to the action founded upon the statement that the report of the inspector has not been reduced is, in my opinion, ill-founded. It is not alleged by the pursuer that it is an untrue or dishonest report, or that the inspector was acting maliciously or oppressively in making it; and the report must therefore be deemed and taken to be a faithful, honest, and true report of the result of the inspector's examination. Whether it is a proper report in terms of the 60th section of the Act, and one upon which the defenders were entitled to proceed in removing the pursuer, is another and a totally different question, which in my opinion does not arise, and cannot be discussed as a preliminary defence to this action, which proceeds upon the footing that while the report is a true report of what the inspector observed, it was obtained by the School Board under circumstances which render their applying for it and acting upon it malicious, oppressive, and unjust.”

The other preliminary defences, however, raise questions of difficulty and of great importance in connection with the working of the Education Act, the main question being, whether and how far the judgment of a School Board dismissing a schoolmaster, and the deliverance of the Board of Education in confirming such judgment, are or are not subject to the review of the Court of Session? Now, so far as regards the merits of such judgments or deliverances, that is to say, the incompetency, unfitness, or inefficiency of the schoolmaster, and generally the sufficiency of the grounds upon which the judgment proceeded, it appears to me that all review is excluded. The grounds of removal are, I think, left entirely to the discretion of these statutory boards. The words of the statute conferring the jurisdiction are as follows:—‘Any teacher of a public school, appointed previously to the passing of this Act, may be removed from his office in manner following, that is to say, … If the School Board of any parish or burgh shall consider that any such teacher is incompetent, unfit, or inefficient, they may require a special report regarding the school and teacher from Her Majesty's inspector charged with the duty of inspecting such school; and on receiving such report the School Board may, if they see cause, remove such teacher from office, providing that, before proceeding to give judgment on the matter, they shall furnish to the teacher a copy of such report, and that a judgment removing the teacher shall not have effect until confirmed by the Board of Education.’ I think the fair, natural, and sound construction of the statute is, that the removal of a schoolmaster is subject to certain checks, to be at the discretion of the School Board, if they shall consider the teacher incompetent, unfit, or inefficient. These checks are, first, the preliminary one of requiring the School Board, before pronouncing any judgment, to procure a report upon the school and the teacher from one of Her Majesty's inspectors of schools.

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And the other check is by declaring that the judgment of removal, when pronounced, shall not take effect until confirmed by the Board of Education.

The intention of the Legislature clearly was (1) to secure that while the administration of the school, including the power of removing the teacher, was to be lodged in the hands of the representative body forming the School Board, such an important discretionary power should not be exercised without due deliberation on the part of the Board, with the assistance of a special report on the school and teacher by an experienced inspector; and (2) that in order to secure still further that justice should be done alike to the ratepayers and the teacher and the school, the confirmation of the Board of Education should be obtained before the judgment of removal could take effect. But I cannot think that it ever was intended that where all these precautions were duly observed the Court of Session should be made a court of review for investigating and discussing the educational requirements of every parish and school district and burgh of Scotland, the capabilities of the schoolmaster, and his fitness or unfitness for the office. And my opinion is not affected by the circumstances that, under the statute the confirmation by the Board of Education cannot be obtained after the lapse of three, or at most four years, from the passing of the Act, the existence of the Board being limited to one or other of these periods. The discretionary power will then be exercised by the School Board without the confirmation of any other Board, and unless flagrantly abused it will not be interfered with by the Court.

In a case somewhat similar which recently arose under the Poor Law Act, which empowers the Board of Supervision to dismiss any inspector of the poor who may in their opinion be unfit for his office, it was held that the deliverance of the Board removing the inspector was final and conclusive, and could not be reviewed on its merits— Clark v. the Board of Supervision, 10th December 1873, 1 Rettie 261. And in all the cases which have arisen under the Education Act, particularly the cases of Logiealmond, 5th February 1875 and 21st May 1875, and Glenshiel, 28th May 1875, it was assumed in argument, and I think also in the opinions of several of the judges, that an honest judgment of removal by a School Board, confirmed by the Board of Education, could not be reviewed by this Court on its merits. But in all these cases, as well as in the case of the Board of Supervision, it seems to have been equally assumed that when a case of unfairness, malice, or oppression is stated against the School Board, this Court may interfere. Such interference, however, will not be by way of reviewing the judgment or investigating i whether it proceeded on sufficient or insufficient grounds, but by inquiring whether the School Board, in their proceedings, have violated the provisions of the statute or exceeded the powers thereby conferred on them, or have oppressed, or were actuated by malice towards the schoolmaster.

Nor will it be enough for the schoolmaster simply to say that the School Board were actuated by malice towards him, unless he can also make out that the Board, knowing or believing the school to be temporarily in a state of disorganisation from causes beyond the control of the teacher, maliciously procured a visit and report from the inspector at a time and under circumstances calculated to convey to his mind the erroneous belief that the unsatisfactory state of the school was due to the incompetency, neglect, or inefficiency of the teacher. But if such a case shall be averred by a teacher, I think that it would not be right to prevent him from having his complaint investigated, merely because, in the ordinary case, an honest judgment of a School Board is final under the statute.

In the present case, I have come to be of opinion, that the averments of the pursuer amount substantially to the statement of a case of deviation from the statute, and of malice and oppression sufficiently distinct to entitle him to have it considered. He avers (1) that the inspector's report is not conform to the statute, because it is a report only upon the school and not upon the teacher. Had this been the sole ground of action, I should have hesitated to sustain it, because I think that the report, although not expressly, is virtually a report upon the teacher when tested by the result of his labours. But (2) the pursuer avers that the report was applied for when the school was disorganised by unusual proceedings of the Board regarding the school fees; by an outbreak of whooping-cough, which caused the absence of many of the scholars from tuition during the period preceding the inspection; by a sudden and unprecedented change in the vacation of the school, made by the School Board, in consequence of which, for a long time after the school re-opened in the end of July 1874, many of the children were detained for a considerable time from school by their parents for harvest work and potato-lifting, so that when the inspection took place in October thereafter they were necessarily in a very imperfect state of tuition, and that the Board had changed the subjects taught in the school from those which had been previously in use to the standards of the Revised Code, which it requires some time to render familiar to the scholars. These causes and others, all being beyond the pursuer's control, operated, it is said, to disorganise the school and to cause the scholars to be temporarily in a backward condition at the date of the inspector's visit, and to convey to his mind an entirely erroneous notion of the true average condition of the school, and of his fitness as a teacher; and he says that the School Board being aware of this state of matters, and having conceived personal animosity towards him in consequence of disputes and litigation between him and them regarding his salary and the collection of the school fees, they maliciously asked for the inspection at this juncture, in the hope and with the expectation of getting a report which would justify them in dismissing him. Now, I think that an action for the purpose of inquiring into averments such as these, and reducing the judgment of removal, if they are proved, is not a review of the judgment on its merits, but is an investigation into the honesty of the School Board throughout the whole proceedings in connection with the removal of the pursuer, and that is not excluded by the statute.

I am therefore of opinion that, so far as the preliminary defences of the School Board are concerned, they are not well-founded.

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As to the defence for the Board of Education, I think that if the allegations of the pursuer regarding the judgment of the School Board are correct—and in the present discussion they must be assumed to be so—the deliverance of the Board of Education confirming that judgment must stand or fall with the judgment itself, although neither malice nor oppression nor irregularity is or can be averred against that Board. If the judgment of the School Board was irregular, malicious, and oppressive, the presumption is that the circumstances were unknown to the Board of Education when they confirmed the judgment, and that had they known all the facts they would have withheld their confirmation. They no doubt allege, although the pursuer does not admit the statement, that they gave the pursuer an opportunity of making any statement which he desired in reference to the judgment before they confirmed it, and it does not appear whether they made any investigations into the allegations which the pursuer now makes as to malice and oppression on the part of the School Board. These, however, are matters for investigation, if hereafter the allegation shall be found relevant.

The present discussion, however, is not whether the pursuer has made averments in whole or in part relevant, for that is a question as to the merits of the action, but whether the defenders have stated sufficient grounds to exclude the action altogether as incompetent. And, on the whole matter, I am of opinion that the defences stated are not proper preliminary defences against satisfying the production; that they should therefore be repelled, so far as preliminary, reserving their effect as defences hereafter on the merits; and that the School Board should be ordered to satisfy the production. After the production is satisfied, defences will be ordered on the merits, and the relevancy of the averments of the pursuer, and the extent and mode of proof, will then fall to be discussed upon a closed record containing the full and final statements of both parties. At present I express no opinion as to whether all or any of these averments are sufficient, if proved, to entitle the pursuer to decree of reduction. This is not the proper stage for discussing that question. It is enough that a prima facie case of malice and oppression is stated to entitle him to have the production satisfied.

“As the defenders, the Board of Education, have intimated their intention to reclaim, they have been found liable in the expense of discussing the preliminary defences.”

The defenders, the Board of Education, reclaimed.

Authorities cited— Clarke v. The Board of Supervision, Dec. 10, 1873, 1 Rettie 261; Morrison v. School Board of Glenshiel. May 28, 1875, 2 Rettie 715; Brown v. Heritors of Kilbery, Nov. 15, 1825, 4 S. 174; Ross v. Findlater, March 2, 1826, 4 S. 514.

At advising—