Scottish Court of Session Decisions

The Lord Ordinary ( kinnear) assoilzied the defenders from the conclusions of the summons.

“ Opinion.—The pursuer complains of a resolution of the School Board by which they fixed the scale of fees at a lower rate than he had obtained before the passing of the Act of 1872, and, further, resolved that children ‘below six years of age should be taught free.’

“The pursuer concedes that the Board had power to lower the scale of fees, but subject, as he maintains, to his right of compensation for diminished emoluments. It is said to be questionable whether they had power to give gratuitous education to any class of children. But that question is not raised for decision, since the pursuer does not challenge the resolution of the Board as being in itself illegal, but complains of it merely in so far as it may diminish his emoluments.

“The defenders, on the other hand, concede that the pursuer is entitled, under the 55th section of the Act of 1872, to the emoluments which he enjoyed at the passing of the Act, or to a remuneration equivalent to these emoluments.

“The pursuer's emoluments at the passing of the Act consisted of a salary of £70 per annum, an annual grant of £30, and the school fees; and it was admitted at the bar that all of these sources of emolument had been taken into account by the defenders in fixing the remuneration which they have tendered for the year 1881–82,—the sum of £305 tendered consisting of the school fees actually earned during that year, with the addition of £100 in lieu of the salary and Government grant previously enjoyed by the pursuer. But the pursuer's averment is that his income for the years 1871–72–73 was considerably less than the £305 tendered, having been £248, 15s. in the first of these years, £261, 7s. 5d. in the second, and £271, 19s. 8d. in the third. The result, therefore, of the alterations of which he complains has not been to diminish his emoluments, but to increase them. He maintains, however, that he is entitled to have his remuneration fixed on the same footing as if all the children presently attending the school were paying the fees at the rate fixed before the passing of the Act; and this is said to follow from the decision in Fraser v. The School Board of Carluke, 4 R. 892, where it was held that the value of a schoolmaster's office could not be fairly estimated without taking its prospects as well as its actual revenue into account. But the pursuer had no such secured prospect of earning fees at the old rate from so large a number of pupils as now attend the school, as to enable him to estimate the value of his emoluments upon that basis. It cannot be assumed that the increased attendance is in no degree attributable to the diminished scale of fees, although it is probable that other causes, and among others the pursuer's skill and energy, may have contributed to the result. Nor can it be assumed that the minister and heritors would have made no alteration in the scale if the attendance had increased under their administration to the same extent as under the administration of the School Board. They had power to lower the fees in the same manner and for the same reasons as the School Board, and it cannot be assumed that they would not have done so if they had found that it could be done without unduly diminishing the pursuer's income. The result is, that the action of the School Board has in no way diminished the pursuer's income, and therefore that he has no claim for compensation. It may be that his emoluments have not been increased in the same proportion as his work; but it is only a diminution of emolument which will entitle him to compensation under the statute.

“Even if a case for compensation had been established, the declaratory conclusions could not have been sustained consistently with the judgment in the case of Carluke.”

The pursuer reclaimed, and argued—It was recognised in Fraser v. The School Board of Carluke, June 4, 1877, 4 R. 892, that a schoolmaster was a partner in the general prosperity of his school, and entitled to share as such in any increase of that prosperity. He was entitled to recover fees if there were any at the passing of the Act of 1872— Buchanan v. The School Board of Tulliallan, June 11, 1875, 2 R. 793; Somers v. The School Board of Teviothead, October 31, 1879, 7 R. 121. It was the fact that the school had increased in attendance solely through his ability and skill. The 55th section of that Act provided he was to have compensation for any diminution in his emoluments, and such had been caused by the defenders' resolution to lower the scale of fees. He was, then, entitled to be paid as if all the children presently attending the school were paying the fees at the rate fixed before the passing of the Act.

The defenders replied—In all matters of internal administration the School Board was supreme. It could alter the whole status of the school, and raise or lower the fees at discretion— Hunter v. The School Board of Kelso, March 5, 1875, 2 R. 520. It was admitted that the 55th section of the 1872 Act provided that the schoolmaster was not to be prejudiced in his emoluments; but the pursuer admitted that his income had been for the years 1871–72–73 considerably less than the sum which the defenders had offered him, and he had thus suffered no prejudice in his emoluments, and compared with those he enjoyed prior to the passing of the Act. A parochial schoolmaster appointed prior to 1872 was in this respect in no better position than any other, for the minister and heritors might, if they chose, have lowered the fees, and it could not be assumed that they would not have done so if the school had then been in the same flourishing condition that it was now. The improvement in its condition was the natural result of the lowering of the scale of fees.

At advising—

Lord Rutherfurd Clark—This is a very important question. I am of opinion that the interlocutor of the Lord Ordinary ought to be affirmed, and as I cannot assign any better reasons than those given by him I shall add nothing.

Lord Craighill and Lord M'Laren concurred.

The Lord Justice-Clerk and Lord Young were absent.