Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Glasgow General Educational Endowments Board v. The Minister and Managers of St Columba Gaelic Church and Others [1886] ScotLR 23_765 (1 July 1886)
URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0765.html
Cite as: [1886] ScotLR 23_765, [1886] SLR 23_765
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 765↓
Court of Session Inner House First Division.
v.
Facts:
A scheme framed by the Commissioners under the Educational Endowment Act 1882 for the management of sundry educational endowments in Glasgow provided that the governing body “shall apply” a certain part of income in paying the fees at elementary schools of “children whose parents or guardians, not being in receipt of parochial
Page: 766↓
relief, are in such circumstances as to require aid in providing elementary education, and are persons who in the opinion of the governors ought not to be required to apply to the parochial board for such aid.” An endowment under a will which provided for the elementary education of the children of poor Highlanders residing in or near Glasgow was one of the endowments included under the scheme, which went on to provide that in selecting beneficiaries the governing body “may expend £150 of the annual sum to be spent under this section specially for behoof of the children of poor Highlanders, and in selecting them shall have regard to the recommendation of the minister and managers of St Columba Gaelic Church.” Held that this latter provision was not compulsory on the governing body, but that the spending £150 on the children of poor Highlanders was in their option and discretion only, and further, on a construction of the scheme, that they were not prohibited from applying more than one-third of said sum for behoof of children under a specified age.
Under the Educational Endowments (Scotland) Act 1882 a scheme relating to certain endowments in Glasgow, and approved by Her Majesty in Council, was promulgated by the Commissioners appointed under the Act, including MacLachlan's School and Graham's School, mentioned infra. The scheme, inter alia, constituted a new governing body called the Glasgow General Educational Endowments Board.
This was a Special Case, to which this governing body were the parties of the first part, asking the opinion and judgment of the Court upon certain difficulties raised by the construction of section 26 of the scheme.
Prior to the framing of the scheme the trustees of a Mr MacLachlan had carried on a MacLachlan Free School for the children of poor Highlanders under the will of Mr MacLachlan, who died in 1822, and who provided by his will for providing an English education for the sons and daughters of poor Highlanders residing in and near Glasgow.
Another body, the Graham trustees, had carried out the trust of Mrs J. Graham or Lindsay (who left money for the endowment of a free school in Glasgow for the benefit of poor children of members of a certain congregation) by paying the fees of the children they selected for the benefit of it at the more suitable public schools.
The 26th section of the scheme was:—“The governors shall apply a yearly sum, not exceeding one-third of the free income of the board, in paying, in whole or in part as they may think fit, the fees of scholars, with books and stationery, at public or State-aided schools in Glasgow for elementary education as defined in the Educational Endowments (Scotland) Act 1882. The free scholars shall be children whose parents or guardians, not being in receipt of parochial relief, are in such circumstances as to require aid for providing elementary education, and are persons who in the opinion of the governors ought not to be required to apply to the parochial board for such aid. In the case of children under ten years of age, the selection of free scholars shall be made with due regard to merit as ascertained by such examination, suited to the age of the candidates, as the governors may from time to time prescribe; or in the case of children for whom some such examination is unsuitable, by evidence that the children possess such qualifications as to justify their selection; and in the case of children who have been in attendance at school during one or more school years, the governors shall, in making their selection, give special weight to good conduct, attendance, and progress at school during the previous year. The fees in respect of children under ten years of age shall not be paid for more than one school year without re-appointment, and the amount to be expended in paying fees for such children shall not exceed one-third of the amount to be applied under this section. In the case of children of ten years of age and upwards, the free scholars shall be selected by competitive examinations, which shall be open to all of the same age who are eligible in terms hereof, whether they have or have not previously been beneficiaries; and for such children the school fees may continue to be paid for such period not exceeding three years as the governors may determine. If any scholar gain a school bursary his school fees shall no longer be paid under this section. The governors, at the end of every school year, shall obtain from the teacher or teachers a special report as to the conduct, regularity of attendance, and progress of all scholars whose school fees are paid in whole or in part under this section, and the fees of no scholar shall continue to be paid in regard to whom such report is not satisfactory. In making their selection of beneficiaries under this section the governors may expend £150 of the annual sum to be spent under this section specially for behoof of the children of poor Highlanders, and in selecting them shall have regard to the recommendation of the minister and managers of St Columba's Gaelic Church. They shall also have regard to the recommendation of children by the directors of the Graham Charitable Society, and by the minister or ministers of the Sydney Place United Presbyterian Church, and may expend a yearly sum of £150 of the annual sum to be spent under this section specially for behoof of such children.”
The minister and managers of St Columba Gaelic Church, Glasgow, who were interested in the MacLachlan Free School, and the directors of the Graham Charitable Institution, and the minister of Sydney Place U.P. Church, Glasgow, who were interested in the Graham School, were the parties of the second part.
The first parties maintained that the provisions of the last paragraph of section 26 were permissive merely, and not compulsory; and that there was no obligation on them, unless they thought fit, to spend the two sums of £150 for behoof of children recommended by the second parties. They further maintained that if they did expend such sums, or any part thereof, for behoof of such children (and that whether their former contention were right or not), they were not entitled to apply more than one-third of the sums so expended for behoof of children under ten years of age, in respect of the proviso at the end of the second paragraph of section 26.
The second parties maintained that the provisions of the last paragraph of section 26 were compulsory, and that the governors must expend
Page: 767↓
£150 annually for behoof of the children of poor Highlanders, provided a sufficient number comes forward duly recommended, in terms of this section. The second parties further maintained that the governors must expend £150 annually for behoof of children recommended by the directors of the Graham Charitable Society, and by the minister or ministers of the Sydney Place United Presbyterian Church, provided a sufficient number comes forward duly recommended. The second parties further maintained that these sums fell to be paid out of the first of the fund under section 26, and to be expended irrespective altogether of the provision at the end of the second paragraph of section 26; and they also maintained that no part of each several sum of £150 annually should be applied to any other purpose than as in this article contended for, unless it should happen that the number of recommended children was not sufficient to exhaust the said respective sums or either of them. The sum which the first parties calculated would be available for the total purposes of the 26th section amounted to about £833, 6s. 6d. yearly.
The following questions were submitted to the Court:—“(1) Are the first parties bound to spend two sums of £150 each on the children to be designated by the second parties; or is it in the option and discretion of the first parties whether to spend these sums or any part of them? (2) In the event of any sum being expended for behoof of children recommended by the second parties, are the first parties prohibited from applying more than one-third of such sum for behoof of children under ten years of age? (3) If the second question is answered in the negative, then are the sums so applied for behoof of the nominated children under ten to be paid out of the first of the fund under section 26, and not to be reckoned in computing the third, to which the total expenditure for children under ten is limited under the section?”
At advising—
Now, whether the children who are to receive aid are to be under the age of ten or not, yet they must all answer to the description which I have just read.
Children under ten are not to be obliged to undergo any competitive examination, while those over ten are to be thus tested, and the most successful are to be selected; but the important provisions as to both classes is that they must comply with the requirements in the first paragraph of this section.
I next turn to the clause under construction, which provides that “In making their selection of beneficiaries (under this section) the governors may expend £150 of the annual sum to be spent under this section specially for behoof of the children of poor Highlanders, and in selecting them shall have regard to the recommendation of the minister and managers of St Columba's Gaelic Church.”
But the children of poor Highlanders are not in any way exempted from the qualification in the first paragraph of this section, for the £150 which the governors are empowered to expend is just a part of the £833. There is no preference in favour of poor Highlanders; all that is provided here is that the governors may listen to suggestions from the minister and managers of St Columba's Gaelic Church. And the same remark applies to the Graham bequest with which the remainder of this paragraph is taken up.
Now, there are three questions put in this Special Case, the first of which comes to this, whether the governors are bound to spend the whole £150 if a sufficient number of poor Highlanders are recommended to exhaust the whole sum, or whether the matter is left to the discretion of the governors? Now, it is to be observed that the provisions of this clause of the 26th section are permissive merely, and they are to be carried out only if they are deemed to be wise in the administration of this charity. It would, indeed, be an extraordinary thing if the governors were to be held to be tied down to take the children of poor Highlanders whether they were otherwise qualified or not. As to the first question, then, I am for answering it in the negative.
Now the second is in these terms—[ His Lordship here read the question]—that is to say, are the governors to be prohibited from applying more than one-third of such sum for behoof of children under ten?
I can see no such prohibition; the only prohibition is that one-third of the £833 is to be so applied, and in selecting the children of poor Highlanders, if more than one-third be selected then a fewer number of the children of the same age must be taken.
The third question is, I think, a kind of puzzle—[ His Lordship here read it]. I take it to mean this—May you have such a number of children under ten years of age, selected under the provisions of the last paragraph, as will along with other children under ten amount to more than one-third? To that question I answer decidedly, No.
The Court pronounced this interlocutor:—
“Find and declare that the first parties may in their discretion expend the two sums of £150 in the 26th section of the scheme mentioned, or any part thereof, on the recommendation of the second parties, but that they are under no obligation to do so: Find and declare that the first parties are not prohibited from applying more than one-third of the said sums for behoof of children under ten years of age, provided that the
Page: 768↓
sum expended for behoof of children under ten years of age, under the said 26th section, shall not exceed one-third of the whole amount to be expended for the purposes of the said section; but in computing the one-third to be applied for behoof of children under ten years of age the proportion of the two sums applied for behoof of such children must be taken into account; and decern.”
Counsel for First Parties— Graham Murray— C. N. Johnston. Agents— Webster, Will, & Ritchie, S.S.C.
Counsel for Second Parties— M'Kechnie. Agents— Rhind, Lindsay, & Wallace, W.S.