Scottish Court of Session Decisions

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Cite as: [1838] CS 16_1136b

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SCOTTISH_Court_of_Session_Shaw

Page: 1136↓

016SS1136b

Bell

v.

Mylne
No. 215

Court of Session

1st Division B

June 15 1838

Ld. Fullerton, Lord Mackenzie, Lord President, Lord Corehouse, Lord Gillies.

Andrew Bell, Pursuer.— Counsel:
D. F. Hope— H. G. Bell. Rev. Andrew Mylne and Others (M'Nab's Trustees), Defenders.— Counsel:
Robertson— M'Neill.

Subject_School—Public Officer.— Headnote:

Under the will of a party deceased, an extensive and permanent institution for education was established; the trustees of the institution were not limited by the testator as to their powers of appointing or dismissing teachers, and they made it an express condition of each appointment that the teacher should he removable at pleasure; one of the teachers, so appointed, was dismissed after teaching for a period of six years, and he raised an action of damages alleging that his dismissal was without just cause; Held, that the stipulation of power to remove him at pleasure, was legitimate in itself, and binding on the teacher who accepted the appointment under that condition; that the trustees were therefore entitled to dismiss him without assigning cause, and that the claim of damages was unfounded.

Facts:

The late John M'Nab bequeathed funds which amounted, with certain interest, to £92,345, and which were directed by him to be applied “for the benefit of a charity, or school for the poor of the parish of Dollar and shire of Clackmannan.” The minister and elders of the parish of Dollar for the time being, were declared trustees and managers of the fund, which was declared to be appropriated “for ever” to the trust. Nothing was prescribed as to their powers of appointing or dismissing teachers. Under their management a large academy for the purposes of education was established at Dollar, for which extensive buildings, containing class-rooms, &c., were erected. Teachers were appointed not only for English, writing, and arithmetic, but also for the ancient and modern languages, and for mathematics. The minister of the parish, the Rev. Andrew Mylne, D.D., also was appointed by the trustees to the office of Principal of the institution with a salary. The salary of each teacher was fixed at £120 per annum, with an allowance of £35 for rent, where a free house was not given; and, although bound to teach part of the scholars gratuitously, as the founder had so destined his bequest, the teachers had a right to fees from the rest of the scholars. The appointments of teachers were chiefly made in 1818, 1819, and in 1821. The minutes of the trustees prior to 1821, containing the appointment of the several teachers, bore that they were respectively appointed during pleasure. In that year, Andrew Bell was appointed teacher of mathematics, and the minute of appointment bore that he was so appointed “upon the same terms and limitations as the other teachers.” In April, 1828, the trustees, being dissatisfied with the conduct of Bell, intimated to him that his services as a teacher should not be required after the ensuing Whitsunday, but directed his salary to be paid up to 1st October ensuing, and a half-year's house-rent also to be paid as from Whitsunday to Martinmas. They then proceeded to elect a new teacher of mathematics who entered on the duties of his office.

In 1836 Bell raised an action of damages against the Rev. Andrew Mylne and the other trustees of the Dollar Institution, alleging that they had unlawfully dismissed him from an employment which he held ad vitam aut culpam. The defenders pleaded that they had sufficient grounds for dismissing the pursuer, if they were obliged to go into the merits of the case; but they maintained separately that as they had only made the appointment during pleasure, they were entitled to recal it at pleasure, and were not bound to state any specific grounds for the recal.

Several special pleas were raised on both sides, but the question on which the cause ultimately turned, was, whether the appointment of a teacher such as the pursuer was contra bonos mores, as being qualified with the condition of being revocable at pleasure, and was to be held as resolving into an appointment ad vitam aut culpam.

The pursuer pleaded, that the Dollar Academy, considering its ample endowment, its permanency, and the scale on which it was established, was of the nature of a public institution. The education of youth was a matter of the highest public concern; it was of essential importance that the teacher should be in a position of independence, so as to have nothing to consult but the discharge of his duty; and this was necessary also in order to his having due authority and influence over his scholars. Accordingly, it had been held, that the appointment of a parochial schoolmaster, necessarily was an appointment ad vitam aut culpam, and that even if an individual schoolmaster attempted to make a stipulation contrary to this, and rendering him removable at pleasure, such stipulation would receive no effect in a court of law, because the condition which rendered the office precarious was held to be illegal and of no effect, ¹ being contrary to the public interest, and at common law, illegal. The same princple had been recognised in the analogous case of the appointment of a town-clerk. ² But as the Dollar academy was truly a public and permanent institution for education, and of a very important description, the same principle of the common law ought to govern all appointments of teachers there. This should be held the more readily as the trustees and managers were the minister and elders of the parish, the natural superintendents of public or parochial education. And, farther, as it was to be presumed that the founder of the institution had the common case of Scotland in view, in establishing the academy, it was only acting according to his presumed intention to hold that the power of appointing teachers, to be enjoyed by his trustees, was only the power of appointment ad vitam aut culpam.

The defenders answered that the Dollar academy was a private institution only, in which the trustees and managers derived their powers from the will of the founder. In that will, nothing existed to abridge their power of appointing teachers on such terms as they considered to be most expedient. They had thought it best to make the appointment only during pleasure, and the pursuer had accepted the appointment under that express condition. There was nothing in the contract of locatio operarum, as applied to the employment of a teacher of any branch of education, at least in a private institution, which made it illegal, or contra bonos mores, to appoint, or hire him, either for one season, or for a given number of seasons, or for life, or during pleasure. ³ In any previous cases where the question had been touched on, it had either occurred respecting public parochial schools, or it was affected with specialties, such as the existence of an express limitation on the power of dismissal without cause shown, or otherwise. But there were no decisions, or opinions, which countenanced the plea maintained by the pursuer. In particular, the case of a
_________________ Footnote _________________

¹ Kempt (13136)—Magistrates of Montrose, Jan. 18, 1710 (13118)—Dunlop on Paroch. Law, 478—Adam, July 7, 1815 (F.C.)

² Simpson, June 17, 1824 (ante, II. 150; or 102, new ed.)

³ Mason, January 23, 1836 (ante, XIV., 343), and December 22, 1837 (ante, XV., 341)—Gibson, March 11, 1836 (ante, XIV., 714).

town-clerk was altogether different from an appointment of a teacher at a private institution.

The Lord Ordinary ordered cases, and made avizandum to the Court.

Lord Mackenzie.—I see no obligation imposed on the managers of this institution to appoint the teachers ad vitam aut culpam. They were allowed to appoint teachers on such terms as they thought most expedient. At common law, I am not prepared to hold that any violation of morality is committed, or any thing done contra bonos mores, by making an appointment of a teacher who is not to hold his office ad vitam aut culpam, but only during the pleasure of those who appointed him. I see no ground whatever for holding this. And if it were proposed to pass a statute containing such an enactment, I should think it an impolitic procedure, and an attempt at over-government of affairs. But the question here is, whether a law of nature exists, which all men are bound to know and recognise, that an appointment of a teacher cannot be effectually qualified with the condition of its being revocable at pleasure, but necessarily resolves into an appointment ad vitam aut culpam. I know of no such law. I can see nothing wrong in the insertion of such a condition in the appointment made by the defenders. The pursuer accepted the appointment under that condition. Other teachers were appointed under similar conditions. After all this, the power of dismissal which the defenders had expressly reserved, was exercised by them; and I think they were entitled to exercise it, and did not thereby become liable in damages. I may observe, that I distinguish between this case and the judgment respecting the appointment of a town-clerk which has been referred to. The cases were quite different. The magistrates were bound to appoint a town-clerk, and had no right to qualify the appointment by adjecting to it a power of dismissal at pleasure. It was considered that such addition was ultra vires, and it was held in the House of Lords, pro non scripto. But the present is a totally different case. The managers of this institution had no fixed law to look to, for regulating them in the appointment which they were to make. I see no ground for holding that the managers committed any error in qualifying the appointment as they did. But even assuming that they had acted injudiciously, though not illegally, in so qualifying the appointment, the pursuer accepted the appointment, qualified as it was. And when he was finally dismissed, it was just in terms of a condition in his appointment to which be had himself consented.

Lord President.—I am of the same opinion. Suppose that the founder of the Dollar Institution had established it during his own lifetime, and that be were still alive, and was the defender in this action. Surely he, who had voluntarily appointed the pursuer, on condition of his being removable at pleasure, could have removed him, without being liable in an action of damages for doing so. And the defenders, who are his trustees, have similar powers. Indeed the argument of the pursuer, if pushed to its full length, would just lead to this, that no private tutor could be dismissed at the pleasure of his employer.

Lord Corehouse.—The Dollar Institution must be viewed in the light of a private establishment. The office of a teacher there is not munus publicum. In such a case, it is altogether new to me to hear it maintained that a power of dismissal, at pleasure, cannot be made the subject of legitimate stipulation at the appointment of a teacher. In the decisions which have been referred to by the pursuer, there was nothing to warrant such doctrine. In the case of the Inverness academy, for instance, there was no power of dismissal conferred on the managers by the charter, excepting “upon proper grounds.” In the present instance it appears to have been quite right that the appointments were made during pleasure only; and, in general, where there is a good body of judicious managers having the right to elect, I am not sure that it is wrong to qualify the appointment by a declaration that it shall be held only during pleasure.

Lord Gillies.—I concur in the opinions which have been expressed.

The Court then assoilzied the defenders; and, of consent, found no expenses due to them.

Solicitors: Fisher and Duncan, S.S.C.— Tait and Crichton, W. S.—Agents

SS 16 SS 1136 1838