Scottish Court of Session Decisions

It is admitted that from time immemorial the Magistrates and Town Council of Dunfermline have contributed towards the support of the burgh school and its teachers. Prior to 1833 the customary contributions appear to have been—First, The providing and maintenance of the school buildings, including the rebuilding of the schools when required, and all repairs and annual charges; Second, the provision of a free house for the rector and the maintenance thereof; Third, the payment of an annual sum of £8, 6s. 8d. sterling to each of the rector and the teacher of music, being the interest apparently at 10 per cent. of the sum of £2000 mortified by Queen Anne in 1610; Fourth, an extra annual payment to the rector of £9, 0s. 10d. sterling out of the common good of the burgh; and Fifth, Prior to 1835 the Council made an annual donation towards the salary of an usher out of the common good in addition to the annual interest of 1000 merks Scots mortified in the hands of the Town Council by the Kirk-Session of Dunfermline.

In 1835 the affairs of the burgh became embarrassed and were placed under trust, and this trust subsisted till the year 1860, when the Magistrates and Council were reinstated in the burgh property. During the subsistence of this trust the payments by the Town Council for behoof of the burgh school were necessarily interrupted, at least to some extent. The school buildings and the rector's house, however, seem to have been maintained as before, and the rector for the time accepted a composition in lieu of his former allowances.

In 1860 the trust for the creditors of the burgh was brought to an end and the Magistrates and Council were reinvested, and since that date, chiefly from the workings of minerals in the property, the burgh revenue has very greatly increased. It now exceeds the sum of £8000 per annum.

In 1869 the rectorship became vacant, and the Town Council on 26th July 1869, adopting the recommendations of a school committee which they had appointed, passed a series of resolutions regulating the constitution of the school and fixing the payments which were to be made for behoof of the school from the burgh funds. These resolutions are embodied in the Special Case. Their substance, in so far as payments from the burgh funds are concerned, seems to be the following:—

First — The separate house for the rector is abolished, and the whole buildings, including the rector's house, are to be made available for teaching purposes and put into proper order and repair.

Second—That an annual grant of £100 be given from the corporation funds, but “this grant, although intended to be a permanent endowment so long as the school continues to be conducted to the satisfaction of the Council, may be withdrawn at any time if that condition is not fulfilled.” This grant of £100 per annum is afterwards allocated—£70 to the rector, and £30 to the English master.

Third — That the rector shall also receive £8, 6s. 8d. per annum, being the interest of Queen Anne's mortification.

Fourth—The Town Council also guaranteed that the emoluments of the rector and English master should reach a certain minimum, but, as this was only for the first year after their appointment, it does notmaterially affect the points now in dispute.

The question really is—Are the resolutions of the Magistrates and Town Council on 26th July 1869 to be taken as the measure of the customary payments now to be made by the Town Council to the School Board in terms of the Education Act, or in estimating the customary payment must the resolutions of 26th July 1869 be laid out of view and regard be had solely to the state of matters existing prior to the town's embarrassment in 1835, and thereafter on its reinvestment in 1860.

Now, the words of the statute are that the constant sum to be paid to the School Board shall be the sum which it has been the custom of the burgh to pay for the burgh school prior to 1872, the date of the passing of the Education Act, and it could scarcely be maintained that what followed upon the resolutions of 1869, which only subsisted at most for three years, would constitute in law a permanent custom. The resolutions themselves, although of course binding in a question with any teachers who may have been appointed under them, might have been reconsidered and altered at any time by the Town Council itself. In short, as the measure of the School Board's right under the Education Act is custom and nothing else, I should have great difficulty in holding that the resolutions of 1869, which were entirely pendent upon the will of the Town Council, and which only subsisted for three years, constituted per se a “custom” in the sense of the Education Act.

It does not follow, however, that the resolutions of the Town Council of 1869 are to be entirely disregarded and laid out of view. They do not of themselves, followed by only three years' usage, constitute a “custom,” but they may be, and I think they are, very important as expressing or exhibiting the interpretation given by the Town Council itself of what they held themselves bound to do for behoof of the burgh school; and if there is no unreasonable disproportion in substance and effect between the resolutions of 26th July 1869 and the previous custom of the burgh, going back necessarily before its embarrassment in 1835, and, in such case, having regard to the whole circumstances, I should be disposed to attach very great weight to the resolutions of 1869, and I would not lightly disturb what the Town Council then after the fullest consideration and deliberation resolved to do.

Taking the case as to amounts roughly and generally, the sums paid prior to the town's embarrassment in 1835 seem to have been the following:—

Page: 28↓