Scottish Court of Session Decisions

This was a Note of Suspension of certain decrees in the Sheriff Court of Midlothian and Haddington, brought by the Rev. William Whyte, rector or head master of the Haddington Burgh School, against the School Board of the burgh of Haddington, in the following circumstances:—

The burgh schools of the Royal Burgh of Haddington, which were averred to have existed from time immemorial, were under the patronage of the magistrates and council of the burgh. The school buildings belonged to them, and they appointed the teachers. The school buildings consisted of a large tenement which, beside school-rooms &c., contained the dwelling house of the rector or head master. In September 1843 the complainer was appointed rector of the schools. He received a salary of £45, (out of which certain sums were payable to the masters), one half of the whole school fees, and a free house. One of the conditions of the appointment was that the schools should “remain as at present, united into one seminary.” On 12th April 1873 the respondents, seeing that there was accommodation for 200 pupils in the burgh school, and that for three years there had not been one pupil in attendance, felt it to be their duty to enquire whether the complainer was not “incompetent, unfit, or inefficient.” The respondents therefore obtained a report from the Inspector of Schools for the district, and a copy of this report was sent to the complainer, who, although he addressed a letter to the respondents, gave no explanation of the fact that the school was without scholars. On 30th August 1873 the respondents declared that the complainer was unfit or inefficient as a teacher, and removed him from the school-rooms, dwelling-house, and other premises. The minutes of the School Board (respondents) in regard to these transactions are to the following effect:—“14 May 1873.—The Board, as narrated, after full consideration of all the circumstances of the case, felt constrained to declare that they consider the Rev. William Whyte, the present rector of the Burgh Schools, to be ‘unfit or inefficient,’ and instructed the clerk to

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write to the secretary of the Scotch Education Department and to request an inspection and report by the District Inspector.” ‘‘The Clerk reported that in terms of last minute he sent Mr Whyte, the rector of the burgh schools, a copy of the report by Mr Gordon, one of Her Majesty's Inspectors of Schools, and other papers mentioned in the minute, and he received from Mr Whyte a letter in reply, which was read to the meeting. The Board think it unnecessary to take any special notice of the disrespectful terms in which they are referred to in that letter, but they must now proceed in terms of the statute to give judgment in the matter; and having carefully considered the sections of the statute bearing upon the removal of unfit or inefficient teachers, their former minute, the report of Her Majesty's Inspector, and Mr Whyte's communication, in which no explanation is given of the past and present state of the burgh schools as an educational establishment, nor reason assigned why there has been no school for the last three years, the School Board hereby unanimously confirm the former minute finding that Mr Whyte is “unfit and inefficient” as a teacher thereof; and further, and subject to the confirmation of the Board of Education, they hereby unanimously pronounce sentence of removal against him as rector or teacher of the Burgh Schools, and from the school rooms and dwelling-house, and other premises occupied by him in connection therewith. Further, the Board direct the Clerk to transmit a copy of the report of Her Majesty's Inspector and of this minute to the Board of Education, and respectfully to request that they should be pleased to confirm the judgment of this Board in the matter. The Board further direct the Clerk to send a copy of this minute to Mr Whyte, that he may, if so advised, make a representation on the subject to the Board of Education.”

The complainer refused to remove from the school house, and the respondents, on 17th November 1873, presented a petition to the Sheriff of Midlothian and Haddington for warrant summarily to eject the complainer from the said dwelling house and premises. The Sheriff-Substitute ( Sherriff) granted decree as craved, and the Sheriff ( Davidson) in so far as the judgments of the Sheriff-Substitute were appealed against, adhered. It was in regard to these judgments that this Note of Suspension was brought.

The complainer averred that he was appointed ad vitam aut culpma, and that there was no fault on his part. His explanation of the fact that there were no scholars in the school was contained in the following statement:—

“In May 1844, the said town council appointed a committee in regard to the said school, to whose appointment the complainer objected, as being at variance with and in contravention of the foresaid report, the constitution of the school, and the complainer's foresaid appointment. The school became gradually unprosperous, but through no fault on the part of the complainer. Trustees, who were the leaders in the town council, and practically the patrons of the burgh schools, organised a private school, which is still in existence, and in one day in 1845, the scholars were reduced from about sixty to about seven, arising from their act. The schools were afterwards put into a much more prosperous state by the exertions of the complainer, but by the withdrawal from time to time of masters who commenced as burgh school teachers, and then left, taking away their scholars, and other causes, the system did not thrive. The burgh schools had been reported on by the town council as being located in an unhealthy position, and the classrooms as not properly ventilated; new school buildings were on that account recommended by the town council committee to be erected, but these were never erected. Of later date, the town council had wrongfully and improperly interfered with the complainer, and found fault with the chastisement of children attending school which led to the complainer giving up that mode of discipline. The council also, without cause, found fault with the complainer as teaching erroneous Bible doctrine, and did much as private individuals, and also in their corporate capacity, to destroy the schools. Ultimately, from the various causes set forth in this article, the attendance at the burgh schools, which was small in the summer of 1870, ceased after the harvest of 1870. This, however, was not owing to any fault on the part of the complainer, who is a good and efficient and well qualified teacher. Since the end of 1870, as previously, the complainer has had full possession of his house (viz., the said westmost house), as rector of the burgh schools, as well as of the salary appertaining to that office.”

The complainer pleaded—“(1) The action of removing, in which were pronounced the interlocutors complained of, was not a competent proceeding for the enforcement of the respondent's alleged rights; separately, the said action was not competent in the Sheriff-court. (2) The respondents had and have no title to sue said action. (4) The Haddington Burgh School, being declared to be a higher class school by the statute, does not fall within the provisions of the sixtieth section thereof. (5) Assuming that the Haddington Burgh School does fall within the provisions of the sixtieth section, these provisions are, so far as regards the complainer, controlled by the fifty-fifth section, and the interlocutors complained of are therefore erroneous. (6) The proceedings in connection with the complainer's alleged dismissal from the rectorship of the school having been contrary to law and to the provisions of the statute, the complainer is entitled to suspension as prayed for. (7) The respondents' averments in the said action being irrelevant, and in all material respects unfounded in fact, and there being no lawful ground for the removal of the complainer from his said office, the interlocutors complained of should be suspended. (8) The interlocutors complained of being erroneous, and not well founded in fact or in law, they should be suspended, and the present respondent found liable in expenses.”

The respondents pleaded:—“(1) No relevant and sufficient ground of suspension having been alleged, the reasons ought to be repelled. (2) In respect that the complainer had ceased to hold the situation in respect of which alone he occupied or was entitled to occupy the premises, he was and is liable to be summarily ejected therefrom. (3) The warrants and decrees complained of not being liable to objection on any of the grounds stated, the reasons of suspension ought to be repelled. (4) Generally, the whole grounds of suspension being ill founded in fact and law, the suspension ought to be repelled with expenses.”

The Lord Ordinary pronounced this interlocutor:—

“9 th June 1874.—The Lord Ordinary having

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heard counsel for the parties,—Repels the reasons of suspension: Finds the warrants and decreets complained of orderly proceeded, and decerns: Finds the suspender liable in expenses, and remits the account when lodged to the Auditor to tax and report.”

The complainer reclaimed.

Argued for him—The house of the teacher in a burgh school was not vested in the School Board at all, but the word school, as applied to burgh school, meant only the fabric where the children were actually taught. It did not matter that the teacher's house and the school proper were here in the same tenement, the School Board had no right to the dwelling-house part of that tenement, and had no title to deprive Mr Whyte thereof.

Again, the master of a burgh school holds munus publicum, and the office is held ad vitam aut culpam. In this case, although there were no children at the school, no such culpa was proved against Mr Whyte as to warrant his deposition.

Argued for the respondents—The fair reading of the Statute was that the whole scholastic establishment was vested in the School Board, and it would be absurd to draw any such distinction as that attempted to be drawn by the appellant.

As to the dismissal of the appellant, the School Board had acted regularly in every respect. The fact that there were no scholars at the school afforded a strong presumption of fault on the part of the schoolmaster, and he never made any other explanation of the fact. Besides, in order to warrant their dismissing him, malversation need not be condescended on, but only reasonable cause shown.

Authorities— Magistrates of Montrose v. Strachan, Jan. 18, 1710, M. 13, 118; Hastie v. Campbell, June 29, 1769, M. 13, 132; Kempt v. Magistrates of Irvine, M. 13, 136; Gibson v. Directors of Tain Academy, March 11, 1836, 14 S. 710; Bell's Principles, sec. 2189.

At advising—