Scottish Court of Session Decisions

The Act 24: and 25 Vict., c. 107 (Parochial and Burgh Schoolmasters (Scotland) Act 1861) provides by section 22—“From and after the passing of this Act it shall not be necessary for any person elected to be a schoolmaster of any burgh school to profess or subscribe the Confession of Faith as the formula of the Church of Scotland, or to profess that he will submit himself to the government and discipline thereof, nor shall any such schoolmaster be subject to the trial, judgment, or censure of the presbytery of the bounds for his sufficiency, qualifications, or deportment in his office, any statute to the contrary not with standing.” …

The 24th section of the Education (Scotland) Act 1872 (35 and 36 Vict. c. 62) provides— Every burgh school shall be vested in and be under the management of the School Board of the burgh in which the same is situated from and after the election of such School Board, and the said School Board shall thereafter, with respect to school management and the election of teachers, and generally with respect to all powers and duties in regard to such schools now vested in the town council and magistrates or other authorities in whom the school management and the election of the schoolmasters and teachers is at present vested, supersede and come in place of such town council and magistrates or other authorities.”

By section 60 of the Education Act of 1872 “any teacher of a public school appointed previously to the passing of this Act may be removed from his office in manner following … (sub-section 2)—“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 the teacher from Her Majesty's inspector charged with the duty of inspecting such school, and on receiving such report the School

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Board may, if they see cause, remove such teacher from office, provided 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.”

Sections 62 and 63 of the same Act relate to higher class public schools, and provide for the standard of qualification of their teachers, their funds and revenues, their relief from the necessity of also supplying primary education, &c. By Schedule C annexed to the Act it is declared that certain schools, including the Elgin Academy, shall be deemed to be higher class public schools to which the provisions of these sections apply. By sub-section 6 of section 62 it is provided that “every such [higher class public] school shall, with reference to the higher branches of knowledge taught therein, be annually examined by examiners appointed and employed for that purpose by the School Board, and in fixing the periods of examination regard shall be had to the reasonable wishes of the headmaster and other teachers, and the expenses incident to such examinations may be paid out of the school fund,” &c.

The School Board of the burgh of Elgin having become dissatisfied with John Mitchell, master of the English department of the Elgin Academy, which was a higher class public school in the sense of the Education Act of 1872, on 14th November 1881 declared that they considered him to be “incompetent, unfit, or inefficient, and hereby require a special report regarding his school and himself from Her Majesty's Inspector of Schools charged with the duty of inspecting such school.”

Following upon this resolution a report was obtained, dated 4th August 1882, from Dr Charles Wilson, one of Her Majesty's Inspectors of Schools. Dr Wilson was at the time inspector for the Southern Division of Scotland. His report was in the following terms:—“In accordance with the resolution of the School Board of the burgh of Elgin, passed by that Board as follows:—‘14 th November 1881.—The School Board, considering that Mr John Mitchell, English teacher in the Elgin Academy, is incompetent, unfit, or inefficient, hereby require a special report regarding his school and himself from Her Majesty's Inspector charged with the duty of inspecting such school,’ And pursuant to instructions received from the Lords of the Committee of the Privy Council on Education in Scotland, I have to report that I inspected the English School in the said Academy on the 8th day of February, and again visited it on the 6th day of June 1882, and that the result of my inspection was as follows:

“The general state of the English School in the Elgin Academy is unsatisfactory, and in pronouncing it to be so I have had regard to the following points:—I found in attendance on the 8th day of February 1882 only twenty-one pupils, i.e., in the first and second or lowest divisions, five children aged from five to seven years; in the fourth division, three children aged from ten to eleven years; and in the fifth division, four pupils aged from thirteen to fifteen years.

Of these twenty-one children only fourteen were paying pupils, three being children and one a boarder of Mr Mitchell, and three being children of Mr Pattison, another of the teachers in the Academy. In the year 1875–6 the average attendance is certified to have been 147, and in the previous year it stood at 156.

As a further evidence of the decreasing attendance, I may mention that while at the public examination by Professor Geddes in 1881 there were 88 present, at my examination in 1882 there were only, as stated above, 21 present.

The pupils were on the date first mentioned examined minutely on the subjects professed, i.e., reading, writing from dictation, grammar, geography, and history, and passed a satisfactory examination, but the range of attainments was limited, and below what one is entitled to expect in the academy or burgh school of such a town as Elgin.

So far as I could judge from the small number present, the discipline and order were good, and the organisation satisfactory.

In a word, although the appearance made by the few children present in the school was satisfactory, yet the state of the school, as a higher class school in such a town as Elgin, was unsatisfactory, whether regard be had to the number in attendance or to the extent of the instruction.

When I visited the school on 6th June 1882 no increase had taken place in the attendance.

Finding the school so empty, without anything either in the state of the class-room or the appliances for teaching, both of which appeared to be satisfactory, to account for it, it was clear to me that Mr Mitchell had lost the confidence of the community.

It therefore became necessary to inquire whether there were any circumstances connected with his conduct or character which could explain this evident loss of confidence in him as a teacher.

On the 7th day of April and the 8th day of June I attended at the Academy, when much evidence was laid before me unfavourable to Mr Mitchell, and also evidence on his behalf. I permitted considerable latitude as to the period over which this evidence extended, because, while I had no right to make any report as to charges against Mr Mitchell of ‘immoral conduct, and cruel or improper treatment of the scholars under his charge,’ and have therefore entirely disregarded any evidence pointing to such charges which was submitted to me, I, however, deemed it to be incumbent on me not merely to report as to the state of the few scholars I found in his school, but also to investigate what appeared to call for explanation as affecting the question of his general fitness as teacher of the English School in the Elgin Academy.

As the result of repeated and anxious consideration of this case, I feel compelled to report that I am convinced that Mr Mitchell's general bearing and tone in the school, and the freedom of language which he has permitted himself to use, have been such as adequately to account for the loss of confidence in him as a teacher, and for the manifest failure of his school.

I think it right to say that in dealing with the case I have dismissed consideration of the differences which have existed between Mr Mitchell and the School Board as to the plans for re-organising the Academy. Mr Mitchell was entitled to protect what he deemed to be his vested interests, and I see nothing in his efforts to do so

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to affect his general fitness as a teacher.

It thus appears that the town of Elgin has suffered, and is still suffering, serious disadvantage in its educational interests from the failure of the English part of the Academy.

As the result of the said visits of the 8th day of February and the 6th day of June 1882, and of the investigations held on the 7th day of April and the 8th day of June 1882, I have to report:—

That the teacher Mr John Mitchell is responsible for the unsatisfactory state of the English School in the said Academy, and I therefore declare him to be incompetent, unfit, or inefficient, in accordance with the above resolution of the School Board.”

On 18thSeptember 1882 this note of suspension andinterdiet was presented by Mr Mitchell, in which he sought to have the School Board interdicted “from insisting in the proceedings after mentioned, and from acting upon or following up in any way as a valid and lawful report, under section 60, sub-section 2, of the Education (Scotland) Act 1872, the pretended report on the English School in Elgin Academy and on the complainer, alleged to have been made or granted by Charles E Wilson, one of Her Majesty's Inspectors of Schools, under said section 60, sub-section 2, dated said report 4th August 1882; … and, in particular, from proceeding, at a meeting of the respondents to be held on 28th September current, to remove or dismiss the complainer from his office of English teacher in said Academy, and to interdict, prohibit, and discharge the respondents from proceeding at any meeting of the respondents to remove or dismiss the complainer from his said office in respect of, or on the faith of, the said report as a valid and lawful report under said section 60, sub-section 2, and before the respondents have received a valid report in terms of law.”

The complainer set forth that he was appointed to his office in 1866, and that for some years thereafter the attendance in his department rapidly increased, but that in 1874, 1875, and 1881 new schools were opened in Elgin which gave a similar education to that provided by the Academy, with the result that the Academy fell off in point of attendance. Two of these schools he alleged to have been set up by the respondents themselves, the fees at one of them being much less than the fees at the Academy. The complainer went on to set forth a number of favourable reports upon his department by Professor Geddes, Dr Donaldson, and others in the years between 1870 and 1878. Thereafter he set forth that the respondents had been anxious that he should retire in order that the Academy might be put in charge of a rector instead of as before, three masters, each at the head of his particular department; that having failed to obtain his retirement on the terms as to retiring allowance they proposed, they had resolved if possible to get rid of him, and had therefore opened the new schools above mentioned to compete with his teaching; and had finally passed the resolution of 14th November 1881 above narrated. In statement 6 he set out sec. 60, subsec. 2, of the Education (Scotland) Act 1872, as above quoted, and averred—‘‘The complainer's school being a higher class public school was not entitled to a Parliamentary grant, and was not subject to inspection for that or any other purpose. It had been examined by Her Majesty's Inspectors (though not officially), but none of these officials were charged with the duty of inspecting it.” Thereafter he set forth, that following upon the resolution of 14th November 1881 Dr Wilson visited the school on 8th February 1882 in order to inspect and report, on the same, and on the complainer. “(Stat. 7) … The complainer got no notice from the respondents of the day fixed, and only knew of it through the newspapers a day or two before. It was therefore practically a surprise visit. Dr Wilson found the school in such a condition that he could not report that the complainer was incompetent, unfit, or inefficient, and he verbally stated this to the respondents. (Stat. 8) After Dr Wilson had inspected the school in February, the complainer was on the same day requested to attend a meeting of the respondents, at which were also present Dr Wilson, Mr J. Badenach Nicolson, counsel for the Education Department, and the law-agent to the School Board. Certain statements were then verbally made as to the complainer's character and conduct in school. This was the first time the complainer had heard anything about these matters, or that there was any dissatisfaction whatever with him. Sometime thereafter the complainer received from the respondents’ clerk a copy of a letter from Dr Wilson, intimating that he, along with Mr Nicolson, proposed ‘to hold the adjourned meeting on Friday the 7th April, at 11 a.m., to enable the School Board to produce any evidence which they may wish to bring forward in support of their charge of unfitness, &c., against Mr Mitchell,’ and requesting notice to be given to the complainer. The complainer upon this wrote to Mr Nicolson protesting against the intended proceedings, and asking what precisely were the intentions and objects of the meeting, and also whether Dr Wilson was not functus in respect of the inspection of 8th February, and whether the proposed inquiry was competent. To this letter Mr Nicolson replied, stating, inter alia, that he could not answer the complainer's questions, as it would be his duty to advise the department and Dr Wilson regarding them. Thereafter the complainer's agent wrote Mr Nicolson asking for a statement which contained the grounds of the charges against the complainer that he might take a copy of it, but this was refused…. (Stat. 9) In these circumstances the meeting of 7th April was held. There was no writing containing any charge against the complainer with which he had been made aware except the minute of 14th November, and the only notice he had of the character of the charges in support of which proof was to be led was derived from the few verbal statements made as aforesaid at the meeting after the inspection in February. There were present at the meeting of 7th Aprii Mr Nicolson, Dr Wilson, all the members of the School Board, a law-agent, who is the treasure of, and at said meeting represented, the respondents; and although the complainer all along protested against the whole proceedings, and intimated that he did not recognise their validity there were also present the complainer and his law-agent. Mr Nicolson and Dr Wilson mad short statements as to the purpose of the meeting neither of them, however, indicating anything as to the nature of the charges against the complainer,

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and then the respondents by their law—agent began to examine witnesses. The respondents examined in all 26 witnesses, including the chairman and a majority of the members of the School Board, and several old pupils who had been under the complainer. There was no record or written statement of what was to be proved other than the minute of 14th November 1881 above quoted. None of the witnesses were sworn. Parents were asked to state, and stated, what their children told them, and the children themselves were in many cases not examined. A great deal of other hearsay evidence was also received. The examination of witnesses for the School Board lasted from the morning till 10 o'clock at night. Thereafter the complainer, still protesting against the proceedings, asked to be allowed to lead proof in reply, and the 8th June 1882 was fixed for this purpose. On 6th June Dr Wilson made a surprise visit to the school, and again inspected it. He found the education of the pupils very satisfactory, and the complainer well qualified to teach. On 8th June the complainer examined witnesses in his defence, and having been told by Dr Wilson that the inquiry must be concluded on that day, that was done. As the complainer could not compel the attendance of witnesses, and had not funds to pay the expenses of witnesses from a great distance, he asked Dr Wilson to give a meeting of a few hours in Edinburgh, at which the complainer might adduce evidence of persons there to contradict some of the graver charges against him, and others near Edinburgh on other charges. But Dr Wilson refused to do so. Productions were lodged with Dr Wilson, and argument addressed to him by the agents for the complainer and the respondents. After a delay of two months Dr Wilson issued a report dated 4th August 1882, a copy of which is herewith produced, and which is here held as repeated brevitatis causa. Mr Nicolson was also present at the meeting of 8th June. A copy of the notes of evidence is produced herewith so far as the complainer has received these from the respondents. But the evidence of the second day, though asked for, was not received from the respondents till the end of October 1882. (Stat. 10) The evidence led by the respondents, as aforesaid, ranged over a period from 1870 or 1871 down to 1878 or 1879. With very little exception the whole of the evidence led related to charges which could only be competently inquired into in accordance with sub-section 1 of said section 60. There was no competent or relevant evidence whatever led against the complainer's competency, fitness, or efficiency. All this evidence was led without a single one of the charges having been put in writing. Those examined could give no date, or could only state that the events they spoke to took place within a year or two of a certain date. The gravest or more serious charges, however, relate to a date at least nine or ten years ago, and all of them were such as could only be inquired into by the Sheriff under section 60, sub-section 1, of the Act.” [This sub-section relates to proceedings before the Sheriff for removal of a teacher on the ground of immoral conduct, or cruel and improper treatment of the scholars under his charge.] The complainer then went on to state that the charges against him were untrue.

After Dr Wilson's report of 4th August was issued, the clerk to the School Board intimated to Mr Mitchell, by a letter dated 5th September 1881, that at a meeting of the School Board to be held on the 28th of September a resolution for his dismissal would be submitted for adoption.

The grounds on which the complainer sought interdict were as follows:—“(Stat. 12) The whole of said proceedings and the said report are illegal and ultra vires. The said inquiry was not competent, and the inspector had no power to make any such inquiry. There is no authority for one of H. M. inspectors of schools holding a court of inquiry into the conduct or character of a teacher apart from his professional capacity, and going out of the school to judge a teacher was entirely beyond his functions. It is not the duty or in the power of such an official to receive and adjudicate upon oral or other kind of evidence…. There has been a complete disregard of the statutory requirements necessary to entitle the respondents to proceed to remove the complainer under section 60 of the Act 1872, even if it were otherwise competent for them to do so. The conditions prescribed by the statute as necessary to entitle the respondents to propose and consider a motion for the dismissal of the complainer have not been observed.”

The respondents pleaded that their actings and those of Dr Wilson having been in accordance with the statute, and in all respects valid and regular, the complainant was not entitled to suspension and interdict as craved.

The other facts of the case relating to the condition of the school, and the negotiations between the complainer and the School Board previous to 14th November 1881, are detailed in the opinion of Lord Mure.

On 27th September 1882 the Lord Ordinary officiating on the Bills (Kinnear) passed the note and refused interim interdict.

On 28th September 1882, at a special meeting of the School Board, a resolution was agreed to dismissing Mr Mitchell from the office of teacher of the English School in the Elgin Academy, subject to the confirmation of the Scotch Education Department.

On 17th November 1882 the Lord Ordinary (Kinnear) having heard parties, refused the note of suspension and interdict, and found the complainer liable in expenses.

The complainer reclaimed, and argued—This was a higher class public school under Schedule C of the Education Act of 1872, and therefore the proceedings taken under section 60, subsection 2, of the Act were incompetent. There was no provision in the Education Act for the inspection of higher class public schools; there was no Parliamentary grant made to them, and inspection and grants had always been regarded as correlative. Dr Wilson was not “charged with the duty” of inspecting the school. Even assuming section 60, sub-section 2, to apply, the statutory procedure had not been followed.— Morrison v. glenshiel School Board, May 28, 1875, 2 R. 715; Macfarlane v. Mochrum School Board, November 9, 1875, 3 R. 88; Kelso School Board v. Hunter, December 18, 1874, 2 R. 228; Robb v. Logiealmond School Board, February 5, 1875, 2 R. 417; Marshall v. Ardrossan School Board, December 10, 1879, 7 R. 359; 41 and 42 Vict. c. 78, sec. 20. The tenure of the complainer's office was ad vitam aut culpam, as the rights of teachers appointed

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before 1872 were secured by sec. 55.— Bell v. Mylne, June 15, 1838, 16 S. 1136; Adam. v. Inverness Academy, July 7, 1815, 14 S. 714, note; Gibson v. Tain Academy, March 11, 1836, 14 S. 710; Presbytery v. Magistrates of Elgin, January 16, 1861, 23 D. 287, Lord Ivory at p. 311; Strachan v. The Magistrates of Montrose, M. 13,118; Bell's Prin. sec. 2189; Campbell v. Hastie, M. 13,132— rev. April 14, 1772, 2 Paton's App. 277; Third Report of the Education Commissioners for Scotland, p. 229; Sellar's Education Act, 7th ed. p. 213; White v. Haddington School Board, July 9, 1874, 1 R. 1124.

Argued for the respondents—Assuming section 60, sub-section 2, to be applicable, then there was nothing irregular in the procedure followed by the inspector. If section 60, sub-section 2, did not apply, then section 24 did, and the powers and duties formerly vested in the town council and magistrates were now vested in the School Board. The right of town councils to dismiss burgh schoolmasters on reasonable cause was never seriously controverted; burgh schoolmasters did not hold office ad vitam aut culpaM. There was sufficient cause here to justify the School Board in dismissing the complainer. — Strachan v. Magistrates of Montrose; Campbell v. Hastie; dictum of Lord Ivory in Elgin case, supra cit.; Duncan's Parochial Law, 819; Dunlop's Parochial Law, 531.

At advising—