Scottish Court of Session Decisions

Lord President—I do not think that there is any room for doubt in this petition. The only question is, Whether the proceedings are within the statute? If so, we have nothing to do with the merits of the dispute between the local Board and the Board of Education. As regards discretion in the matter, the Board of Education is supreme and final, and we cannot interfere.

Are the proceedings, then, within the statute? The provisions of the 27th, 28th, and 36th sections of the Act are all very simple I think, and there cannot be much difficulty upon the question. The original proposal—I call it so, for all the subsequent proceedings took their departure from it— was the communication of 2d January 1875, from the School Board to the Board of Education. The only part of the documents of any consequence which, in accordance with the terms of that letter, accompanied it, was the minute of meeting of the School Board on 23d December 1874. A motion was submitted that Burnside School should no longer be kept in view, for the reason that it was held under a special trust, and that the proprietor then vested in it declined to sanction the transference, and the motion further suggested that the Board should consider Burnside not suitable for a school for the western portion of the parish, and should take the necessary preliminary steps for erecting buildings on another site. It has been contended that the resolution with which the minute closes [ reads as above] s imperfect under the 27th section, because it is a determination without an opinion, and not in the words of the section, that the requirements “exceed the provisions” for supplying education. That is a most critical and ingenious exception to take to the action of a School Board. What the School Board did was to look at the requirements of the parish, and their proceedings presume a want of accommodation. The clerk then writes to the Board of Education to ask their sanction to what was proposed, which it was necessary to have. So that I disregard that objection. It is clearly a determination within the plain meaning of the 27th section.

The way in which this communication was received is seen from the letter of 20th April 1875, written by the Secretary to the Board of Education to the School Board. They express disapprobation of the scheme, or, as they put it, refuse sanction of it. And that is an end of it. It is quite plain why they refused. They thought Burnside a better site than Gateside, and that the school there might be transferred; but as time went on they found reason to change their mind.

It is further clear from the communications between the two Boards that the Board of Education had resumed consideration of the resolution of the School Board, communicated in their letter of 2d January 1875. The School Board could be under no doubt about this. If it were incompetent for the Board of Education to go back and reconsider, the course they took might be inept. But I cannot imagine any such objection. Circumstances might emerge to make the Board of Education look at a proposal in a more favourable light, and if they refused sanction at one time there is no reason why they should not give it at another after a change of mind.

After various communications implying a reconsideration of the matter, the Board of Education, at their meeting on the 3d of March 1876, authorise their chairman to write to the School Board to say that they have had before them various documents—the school schedule, the report of 3d March 1876, and previous communications and reports by Principal Tulloch, &c.,—and that upon a consideration of all these they approve of the opinion and determination of the School Board to erect a new school for 100 scholars at Gateside on the ground belonging to Philp's Trust.

That determination is in the terms of the 28th section of the Act, and I can conceive no objection to it. The School Board, after receiving the sanction were bound to go on without delay, but instead of that they think fit to open up the negotiations again. Whether that was expedient or not it is not for us to say. The question is, whether there is an opinion and determination by the School Board in terms of the 27th section of the Act, sanctioned by the Board of Education in terms of the 28th section. Whether, further, the School Board has failed to carry that out, and has continued to do so notwithstanding the requisition served upon them in terms of the 36th section. These facts appear to me to be quite made out on the papers before us, and I therefore think the prayer of the petition should be granted.

Lord Deas—It was pleaded to us that there was a statutory objection to the course taken by the Board of Education, but I cannot discover that that is so from the proceedings before us.

While the School Board changed their views on the plan to be adopted for supplying the deficiency in the means of education, the Board of Education changed theirs also, and came to think the school should be erected at Gateside, as had been the opinion of the School Board at first. There is no statutory provision to prevent either the one or the other from altering their views. Apparently the Board of Education only changed in this sense, that they found the obstacles in the way of getting the Burnside School were so great that the proposals should not be persevered with. But supposing their reasons were not so clear, it lies with the Board of Education to act as they think right, and when they make their requisition without any effect, our duty is merely ministerial. It is not for us to judge whether there is anything unreasonable in their view, but I would only urge that in this case, so far as I see, it is only right and reasonable.

Lord Mure—I am satisfied that these proceedings are within the statutory powers of the Board of Education, and that is all that we have to consider. I cannot say that the Board of Education have not given the School Board full time to carry out the proposal which they had sanctioned.