Scottish Court of Session Decisions

The Dollar Institution was held and administered (1st) under the will of John M'Nabb, dated 8th May 1800, and order and decree by the Lord Chancellor dated 22nd June 1818, by the minister and kirk-session of Dollar down to 22nd July 1847; and (2nd) under Act of Parliament 10th and 11th Victoria, cap. 16 (22nd July 1847), by a body of trustees, who managed the affairs of the Institution down to the 25th day of March 1887, at which date a Scheme prepared by the Commissioners under the Act 45 and 46 Victoria, cap. 59, entituled the Educational Endowments (Scotland) Act 1882, and approved of by Her Majesty the Queen by Order in Council on the said 25th March 1887, came into operation.

The minister and kirk-session, as trustees under the will, granted several pensions to teachers, and the trustees under the Act of Parliament 1847 (although no special provision or power was made or given for their so doing) also granted a pension to a teacher who was appointed to his situation prior to 1847, but to no teacher appointed by themselves until in the case of Miss Crombie, after mentioned.

By the 19th section of the Scheme the old trustees were empowered to continue to exercise all necessary acts of administration relative to the Endowment, and have all powers necessary therefor, until the first meeting of Governors held under the Scheme, and the trustees were, from and after that meeting, or at such time not exceeding six months therefrom as the Governors might appoint, wholly to cease from exercising any right or power of administration over the Endowment.

In accordance with section 18 of the Scheme, the first meeting of the Governors was held on 17th May 1887. The trustees held a meeting on the 4th July 1887 for the transaction of business. At this meeting of trustees it was by a majority resolved that Miss Crombie, for thirty-three years one of the teachers in the Institution, should receive a pension of £25 per annum on account of her long and faithful services. When the term arrived for payment to Miss Crombie of her pension the Governors paid it. At the audit of their accounts exception was taken to this payment, and it was disallowed by the auditor. On appeal, however, to the Scotch Education Department the payment was allowed, but the Governors were informed that they must furnish the Department with a legal opinion in favour of the course pursued before any future liabilities of the kind objected to were created.

At the next audit of accounts various items, including Miss Crombie's pension, were objected to. The Governors again appealed to the Education Department, who replied that before the question of remitting the disallowances (especially as regards the pension to Miss Crombie) could be disposed of they would require to have a legal opinion on the question. Opinion by counsel unfavourable to the Governors was furnished to the Department, who replied that “My Lords can only suggest that the Governors should, if persuaded of the necessity of such payments, consider whether it would be well to proceed under section 51 of the Scheme. But my Lords must of course reserve their own judgment in regard to any such proposal until it is before them.”

Section 51 of the Scheme, adopting the provisions of section 20 of the Educational Endowments Act 1882, provided—“It shall be in the power of the Court of Session to alter the provisions of this Scheme upon application made to them with consent of the Scotch Education Department, by the governing body or any party interested, provided that such alteration shall not be contrary to anything contained in the Educational Endowments (Scotland) Act 1882.”

The Governors accordingly presented a petition to the Court, in which, in addition to the facts already narrated, it was further set forth—“That the Governors have now obtained the consent of the said Education Department to this application, which consent is in the following terms:—‘2 nd May 1890.—Sir—Adverting to their Lordships' letter of the 11th ult., I am to inform you that my Lords are now prepared to give their consent to the governing body making an application to the Court of Session, in terms of section 51 of the Scheme, but only on the express understanding that such consent is given, not as implying any opinion on the subject of the application, but only in order that the question may be duly submitted to the judgment of the Court.’

That two other cases have arisen, which have also been brought under the notice of the said Education Department, and which the Governors deem worthy of the consideration of your Lordships, involving, as they do, hardship to the teachers concerned.

1. The case of Mr Douglas.—This is the case of a teacher who has been for thirty-nine years a faithful servant of the said Institution, and who has not resigned, but has been compelled from old age and ill-health to cease from active work. That in this case the Governors continued to pay to him his salary, and appointed another teacher to do his work, and that they are now continuing him on the staff at a reduced salary.

2. The case of Miss Snowdoune.—This is the case of a teacher who has been for twenty-five five years in the service of the said Institution, being teacher in the Sheardale

Page: 157↓

school, which belonged to and was under the administration of the said Dollar Institution trustees. That the said school was discontinued under and by virtue of the provisions specified in section 22 of the said Scheme, and the services of Miss Snow-doune were therefore dispensed with. That it has been proposed, with your Lordships' sanction, to give Miss Snowdoune out of the trust funds a sum equal to three years' salary in respect of her long and faithful services and the position in which she has unfortunately been placed owing to the operation of the said Scheme.”

The petitioners accordingly craved the Court to amend the Scheme of the Educational Endowments Commission passed for the administration of the Dollar Institution “in order to make it applicable to the cases of Miss Crombie, Mr Douglas, and Miss Snowdoune, by adding at the end of section 24 of said Scheme the following clauses:—‘Provided that such pensions as may have been granted by the trustees of Dollar Institution appointed by Act of Parliament 1847 (10 and 11 Vict. c. 16), are and shall continue to be a burden on the trust; Provided also that the Governors shall have power to grant a retiring allowance to such teachers as had served the trust for a long period, and were found to be old and infirm at the passing of the Scheme; and provided also that the Governors shall have power to grant compensation to such teachers as may have lost their appointments through the passing of this Scheme.” It was further explained in the petition that while the proposed amendment was stated in general terms, the petitioners only desired authority to dispose under it of the three cases mentioned, and were not contending for the general principle of power to compensate or pension.

After intimation had been made in common form on the walls and in the minute-book, the Court on 18th October 1890 remitted to Mr George Gillespie, advocate, to inquire and report.

Mr Gillespie reported that the three cases specified in the petition were proper cases for pensions or allowances if the Governors had power to grant them, and that the Governors had at their disposal ample funds to meet the proposed payments, but said—“I hardly think that the present application is an application of the character which the Legislature expected to be made under that section. What seems to have been contemplated by that section was a permanent alteration in the scheme of management of the institution, or of the constitution of the governing body, which experience had been found to recommend. There is no such alteration sought here; all that is asked is that the Court shall grant special powers of a temporary nature for certain particular cases. Now, that being so, it is not to be expected that the proposal should be contrary to anything contained in the Act in the sense of being forbidden by any of its provisions. Had there been a provision proposed for giving the Governors a general power of awarding pensions in the future, that would have raised a general question of principle on which some instruction could be got from the Act, but there is no such proposal here.”

At advising—