Scottish Court of Session Decisions

By minute dated 23rd October 1873 the School Board of Inveraray and Glenaray “resolved to adhere to the arrangement contained in their minute of meeting of 3rd inst., viz., ‘that Mr Smith’ (who had been appointed teacher of the Burgh Parochial School in Inveraray in 1854) ‘should have £5 in addition to his statutory salary of £35 on condition that he gives the use of two-thirds of the new class-room to be converted

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into an infant school, … and that Mrs Smith be engaged by the board to give instructions to the girls attending Mr Smith's school in sewing and cutting out for an hour each day at a salary of £5 per annum (the engagement to be from year to year), on the understanding that Mr Smith will send all children under seven years of age to the infant school except when their parents object to their being so sent;’ with the following alterations and explanations—(1) The Board are disposed to agree to give all the Government grants without any deductions except the salary or salaries of a pupil teacher or pupil teachers. The heating of that portion of the new class-room to be given for Mr Smith's use of course to be provided. … (4) This arrangement to take effect from and after the end of the current quarter, being 5th December next 1873.”

From 1873 to 1886 inclusive the School Board paid Mr Smith all the Government grants received by them, subject only to the deduction named in the minute, but after 1886 they refused to pay him two of the grants which they received.

The first of these grants, which was given under minute of the Committee of Council on Education of Scotland dated 30th April 1885, commonly known as the “Highland Minute,” was an additional grant for attendance made to the School Boards of Argyllshire and certain other Highland counties in consideration of the exceptionally heavy burden laid upon these boards in providing and maintaining schools for the scattered population. The second grant was a special grant for needlework introduced by the Code of 1887.

The School Board having persisted in their refusal to pay Mr Smith these grants, which amounted to about £18 and £2, 5s. a-year respectively, Smith in March 1891 brought an action against the Board for payment thereof with interest. The defenders resisted the claim of the pursuer, inter alia, on the ground (1) that the special grants in question were not in the contemplation of parties at the time when the agreement was made, and did not fall within its terms, and (2) that if the agreement covered these grants, it was ultra vires of the School Board to surrender to the pursuer sums which were intended by Parliament for relief of the ratepayers.

On 2nd June 1891 the Lord Ordinary ( Stormonth Darling) decerned in terms of the conclusions of the summons.

“ Opinion.—… I am of opinion that the pursuer is entitled to the sums which he claims.

The defenders' averments of departure from the agreement do not touch the essential parts of it. They relate to certain minor and temporary matters connected with the infant school, which have nothing to do with the pursuer's right to the Government grants.

The defence that the grants in question were special, and not in the contemplation of parties at the time of the agreement, is much more deserving of attention, though I do not think it is well founded. It is true that the minute of 30th April 1885 proceeded on the ground that some special aid was required for the Highland counties, owing to the scattered population requiring numerous small schools, and the consequent heavy burden laid on the rates. But this was no new discovery. The Act of 1872 had itself provided, by section 67, exceptionally favourable treatment as regards both building and other grants for the counties of Inverness, Argyll, Ross, Orkney, and Shetland (to which Parliament has since added Sutherland and Caithness), and the additional aid afforded under the minute of 1885 was chiefly by an increase in the rate of grant for average attendance. When it was agreed in 1873 that the pursuer should get ‘all the Government grants,’ it must have been foreseen not only that the ordinary grants might rise, but also that the favour already extended to schools in Argyllshire might be still further increased. An ingenious attempt was made by Mr Shaw for the defenders to assimilate the question to those cases (of which Dunbar's Trustees v. British Fisheries Society, 5 R. 350, aff. H. L., same vol., is the leading instance) in which obligations in relief of public burdens have been held not to cover new burdens imposed by supervenient legislation. But the principle of these cases is, not that an increase in the amount of the assessment resulting from subsequent legislation will take a burden out of the clause, but that to have this effect there must be a difference in the character or incidence of the burden. Accordingly, in Dunbar's case, although road assessments imposed by local Acts were held to be new burdens outside the clause of relief, the greatly enhanced poor rate introduced by the Act of 1845 was held to fall within it. I do not think therefore that these afford any support to the defenders' argument.

The remaining plea—that it was ultra vires of the School Board to surrender these grants—necessarily depends to a large extent on the defenders' success in showing that the grants were new and special. For, after the judgment in Somers v. School Board of Teviothead, 7 R. 121, it would be hopeless to maintain that in dealing with an ‘old’ schoolmaster it is ultra vires of a school board to make a permanent arrangement, and to include in the emoluments so secured to him the Government grant. Nay, more, in that case (as noticed in the Lord Ordinary's note) an unsuccessful attempt was made by the School Board to distinguish a part of the grant, called the ‘distance grant,’ on the ground that it was subsequent and special. The distance grant is an addition made to meet the case of sparsely populated districts in any part of Scotland, and is of precisely the same character, and made with the same object as the increased grants to the Highland counties. The Teviothead case is therefore a strong authority in favour of the pursuer. But if I am right in holding that the grants under the ‘Highland Minute’ were simply ordinary grants at higher rates, there was nothing special

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about them except as to the area over which they extended.

I would only add that all grants for elementary education are intended, in a sense, to relieve the rates. Nor does it follow that they are diverted from their proper purpose by being allocated to an ‘old’ teacher, for the School Board have to satisfy his claims out of the school fund, and if they do not use the grant for that purpose, the burden would fall on the rates. Agreements like the one in question have an element of risk about them, but they are not on that account unlawful, and if the teacher in some cases is the gainer, the result might be different.”

The defenders reclaimed, and argued—The grant under the Highland Minute was really a grant made for the special purpose of relieving the rates of heavy building expenses, and when the agreement was entered into the parties had before them the Act of 1872, which by section 67 provided that after that year no grant of that kind should be made. Clearly, therefore, such a grant could not have been in the contemplation of the parties at the date of the agreement. Assuming, however, that it fell under the agreement, it was ultra vires of a school board to surrender to a teacher grants intended for the relief of the rates so as to bind their successors. The result of construing the agreement in the way contended for by the pursuer would be that money granted by Parliament for a particular purpose would be applied to one quite different. This objection did not apply to the claim made in the case of Somers, and that case therefore did not govern the present. The Lord Ordinary was not fully apprised of the importance of Dunbar's case, because new burdens of the same kind as existing burdens would not fall under such a clause as that which was the subject of consideration in that case.

Argued for the pursuer—The agreement between the parties was expressed in general terms, and it might fairly be held that new grants fell under it. As regarded the grant made under the Highland Minute, that was an additional grant of the same character as one existing when the agreement was entered into. There could therefore be little doubt that it must be held to fall under the agreement between the parties. As to the plea that it was ultra vires of a school board to enter into such an agreement, the contrary was established by the case of Somers.

At advising—