Scottish Court of Session Decisions

At a meeting of the School Board of Lochgilphead, held on the 4th May 1885, it was agreed by a majority of the members of the School Board to grant the use of the old school of Lochgilphead to the Glasgow Foundry Boys' Religious Society from the 17th to 22d July for their summer trip. Dr Hunter, a member of the board, was present at this meeting, and “on sanitary grounds” moved to the effect that the use be not granted, but on a division his motion was lost. The period from 17th to 22d July was part of the school vacation.

At another meeting of the board on 6th July Dr Hunter moved again that the school be not granted, but the board carried an amendment to adhere to their former decision. the amendment was only carried by the casting-vote of the chairman.

Dr Hunter then presented a petition in the Sheriff Court of Argyleshire to have the School Board interdicted from granting the use of the school for the “trip” in question, or for any purpose other than that authorised by the title to the site thereof and by the Education (Scotland) Act 1872. He averred that by a disposition dated 23d, 24th, and 28th April and 24th June 1851 Alexander Campbell of Auchindarroch had granted to the Presbytery of Inverary and to the minister and heritors of the quoad sacra parish of Lochgilphead a piece of land, to be held for the purposes specified in an Act intituled “an Act to facilitate the foundation and endowment of additional schools in Scotland 10th August 1838,” as a site for a school for the education of poor persons in the said quoad sacra parish, and for the residence of schoolmaster and schoolmistress of the said school, and for no other purpose whatever; that the school in question which had been built upon the said piece of ground, and had a playground attached, was now vested in the School Board of the parish of Lochgilphead by virtue of the 23d section of the Education (Scotland) Act 1872, and that the dispositive clause of all charters and dispositions

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granted in favour of School Boards since the passing of the Education Act 1872 bore that the old school was disponed to the School Board “for a public school within the meaning of the said Education (Scotland) Act 1872 in the parish of, and for a playground for the scholars, and for a residence for the teacher or teachers in the said school, and for no other purpose whatever,” and this was the form of clause approved of and revised by the Educational Department. He therefore founded on section 23 of the Education Act 1872, which provides that the parish and other schools established in any parish and the teacher's houses shall be vested in and managed by the School Board, with all the powers, obligations, and duties vested in the heritors according to the law existing before the Act. He also averred that the Glasgow Foundry Boys' Religious Society had on several previous occasions been granted the use of the school on their summer trip, and that on these occasions they had done damage to the school-house and furniture. On sanitary grounds, also, the pursuer averred that he considered the school ought not to be granted, looking to the risk of infection and disease which would be caused by the lending of the building to a large number of children coming of the class of those to whom the permission was proposed to be given.

The respondents answered that they admitted the school was vested in and was the property of the School Board, but that the board were in the habit of lending the school when not wanted for school purposes to various bodies for the purpose of holding meetings of various kinds, as for example, for religious purposes on Sunday evenings, lectures, and soirees, and that such a permission was within the power of the School Board. They also averred that the board had in arranging with the managers of the Society provided against damage being done to the furniture, &c., of the school-house, and that arrangements were to be made for having all things put right when the boys went away.

They contended that being a corporate body, and having as such the entire management and control of the school, no one had a right to interfere with that management or the manner in which they might use the school on special occasions provided that they did nothing to interfere with the educational interests of the district.

The pursuer pleaded—“(1) The defenders are not entitled to use the said school-house and ground for other than educational purposes, or such as are sanctioned by the title thereto and the Acts of Parliament above quoted. (2) In any case the defenders are not entitled to grant the use of the said school to the Glasgow Foundry Boys' Religious Society, or to the Fair Week Trip Committee of said society, for affording accommodation to the Foundry Boys during their annual summer trip. (4) The pursuer, as a ratepayer within the said parish of Lochgilphead, is entitled to insist in the present process, and is entitled to interdict as craved.”

The defenders pleaded—“(1) The pursuer having delayed his application for interdict until all arrangements had been fully completed in good faith between the School Board and the society that the school was to be occupied by the society for the occasion asked, and the time being now past for which the school had been granted, the present petition for interdict is unnecessary and incompetent. (6) In the whole circumstances, the pursuer is not entitled to interdict as craved in the present action, and the defenders the School Board are entitled to be assoilzied from the action, with expenses.”

The Sheriff-Substitute ( Campion), after hearing parties' procurators, assoilzied the defenders from the conclusions of the action. He stated in a note that he declined to adjudicate upon the general question, and that as the time of the society's trip had passed before he gave his decision, he refused interdict upon that ground, and not on the merits of the petition.

The pursuer appealed to the Sheriff, who on May 25th issued this interlocutor—“The Sheriff having heard parties' procurators, and considered the appeal for the pursuer against the interlocutor of 26th October 1885, and whole process, recals said interlocutor: Finds (1) that at a meeting of the School Board of Lochgilphead, held upon 4th May 1885, in answer to an application by the Glasgow Foundry Boys' Religions Society, permission was granted to them to use the old school for the purposes of their holiday trip, from 17th to 22d July 1885; (2) that the pursuer was present at said meeting, and made a motion to the effect that the use of the school be not granted, which motion was rejected; (3) that on the 6th July following the pursuer again moved to the same effect; (4) that he subsequently raised the present petition for interdict: Further, sustains the sixth plea-in-law stated for the defenders: Assoilzies them from the conclusions of the action: Finds them entitled to expenses, including the expenses of this appeal, &c.

“ Note.—In this cause the Sheriff has come practically to the same conclusion with the Sheriff-Substitute, although on somewhat different grounds.

“He cannot consider the interdict here sought by the pursuer as limited to the single occasion now in question. It seems to him to be rather of the nature of a continuing interdict, and that it is thus necessary for its satisfactory disposal, to some extent at least, to go into the merits of the question here raised. As to the title to the ground on which these school buildings stand, and to the conditions and restrictions imposed there and in the Act of 1872, bearing on the uses to which alone these buildings may properly be applied, it seems to the Sheriff that these provisions are directed rather against permanent alienations of the school-house for purposes opposed to their proper and primary use rather than against a temporary employment of that building for a limited and casual purpose like that in question, and therefore that they do not go very far towards solving the question here at issue.

“Nor does it appear that there exists anything in the shape of cases adjudged in the Courts of law to aid in this solution. In default of such authority it might perhaps be thought that decisions of these Courts as to the legality of proposed applications of churches to other than their primary uses, of which some well-known instances are found in the books, might at least supply something by way of precedent or analogy, but here again the principles of decision are different. It is true that church buildings are not

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now as they were in former times devoted by consecration to the uses of public worship and the administration of the sacraments; yet a dedication of them, either actual or constructive, is recognised by our law, ‘though the formal consecration of things to sacred uses,’ writes Mr Erskine, ii. 1, 8, ‘hath not yet been practised by the Church of Scotland since the Reformation (M'Kenzie, sec. 4 h t), yet churches, communion cups, and other things destined to sacred purposes, retain to this day so much of the character of sacred that they are exempted from commerce, and so cannot be applied to the uses of private property while they continue in that state.’ See also the opinion of Lord Medwyn in Kirk-Session of St Andrews v. Magistrates of Edinburgh, January 31, 1835, 13 S. 391. So Sir George Mackenzie, in the passage referred to by Erskine, includes among things that do not fall under commerce, ‘things that are said to be “no man's,” but are juris divini, which are either sacred, such as the bells of churches; for though we have no consecration of things since the Reformation, yet some things have a relative holiness and sanctity, and so fall not under commerce—that is to say, cannot be bought and sold by private persons.’

“The law is similarly laid down by Bankton, ii. 69, secs. 169 and 196. Reference may also be made to the cases of MacNachtan v. Magistrates of Paisley, February 7, 1835, 13 S. 432, and Easson v. Lawson, July 20, 1843, 5 D. 1430. It would, however, appear that even as to the use of such buildings more freedom was sometimes allowed. ‘It frequently happens,’ says Mr Dunlop (Parochial Law, p. 60), ‘that public meetings for objects totally apart from anything relating to religion or to the affairs of the parish are held in the church, and that it is likewise used for meetings of courts of law, and formerly of freeholders for the election of members of Parliament. This use of churches is certainly contrary to an ancient law which prohibited holding of courts of law within churches and churchyards (Quoniam Attachiamenta, cap. 86), but how far since the Reformation our Courts would interfere to prevent such use of a church seems doubtful.’

“As already said, there do not appear to be decisions of the Courts fixing with certainty the allowable uses of school buildings, but from the very absence of such judgments it may not be too much to infer that these questions are usually left to the discretion of those who are responsible for the due and proper care of the fabric itself to grant or to refuse its use as they may seem fit, and where granted to impose such regulations and restrictions as may be necessary for the prevention of injury or for the repair of any damage that may be done.

“Cases of abuse may from time to time arise, but these, where gross or clamant, will no doubt be corrected by the Courts. But the use here granted seems a charitable or at least an innocent one, and it does not appear to the Sheriff to call for the intervention of the law for its prevention.”

The pursuer appealed to the Court of Session, and argued—(1) The action of the School Board in giving the use of the old school for this Foundry Boys' Society trip was ultra vires. The Sohool Board held this school under the title which had vested in them, and also as trustees for the inhabitants of Lochgilphead for the purposes only which were mentioned in the Education Act 1872. The purpose was illegal, because it was outwith the purpose for which the School Board hold it. The purposes for which the school was held, and for which it had power to levy assessments, were educational only. That was shown by the cases which had been decided in regard to the right to hold meetings in churches. The churches were for religious services and the benefit of the parishioners, but the decisions in those cases were given not on account of the sanctity of the building, but because the purposes for which the churches were to be used were against the purposes for which they were originally intended— Kirk Session of St Andrew's, Edinburgh v. Town Council of Edinburgh, January 31, 1835, 13 S. 391; MacNachtan v. Magistrates of Paisley, February 7, 1835, 13 S. 432; Easson v. Lawson, July 20, 1843, 5 D. 1431; Sellars' Education Act, p. 178. (2) The desired purpose was beyond the discretion of the School Board.

The defenders argued—As regards the discretion of the School Board in allowing the use of this school, the Court would only interfere in gross cases of abuse of the discretion of an elected body subject to the review of their constituents. The board had made arrangements whereby all risk of infection or damage to the school itself would be avoided. If the principle contended for by the opposite party was properly carried out, it would prevent the School Board giving the use of the school-house even for harmless and laudable purposes if they did not fall strictly under the purposes of the Education Act, and would cause inconvenience all through the country. As regards the objection that it was ultra vires to use the school for this purpose under the title, it was to be observed (1) that the prohibition in the title applied only to the question of sale of the school; (2) that the question could only be raised by the superior of the ground. There was no direct prohibition of such a use as this in the Education Act, and the implication that any other purpose than an educational one was forbidden should not be carried further than that nothing should be done inconsistent with the purpose of the statute. The doctrine that if a building had been built for a certain use it was to be used exclusively for that purpose had been applied by the law of Scotland only to a limited body of buildings, and did not apply to any other kind of buildings except churches. All the cases quoted as to churches were mixed up with the question of support to the Established Church—Erskine, ii. 1, 8.

At advising—