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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Governors of Anderson's Trust, Petitioners [1896] ScotLR 33_430 (12 March 1896)
URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0430.html
Cite as: [1896] SLR 33_430, [1896] ScotLR 33_430
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SCOTTISH_SLR_Court_of_Session
Page: 430↓
Court of Session Inner House First Division.
Facts:
The Court in the exercise of its nobile officium will not sanction the application of the money of a charitable trust to educational or charitable purposes for which it is lawful to impose rates, or to the accomplishment of which public moneys are already dedicated.
The governing body of a charitable trust, which provided free elementary education for poor children in certain parishes, presented an application to the Court for alteration of the scheme of administration of the trust drawn up by the Educational Endowment Commissioners. The reporter to whom the Court remitted to consider the alteration, objected to it on the ground that the application of the funds proposed was truly in relief of rates. The petitioners thereafter amended their proposed alteration so as to confine the application of the funds exclusively to an object for which rates could not be imposed.
The Court granted the application as amended.
The Governors of Jonathan Anderson's Trust, Forres, with consent of the Scotch Education Department, presented a petition for alteration of the scheme of administration of the said trust prepared by the Commissioners under the Educational Edowment (Scotland) Act 1882, and acted upon since 1888.
The petitioners averred—“Under said scheme the petitioners have maintained a school in the buildings of the Institution. The Institution stands opposite the Public School of the burgh of Forres, and playgrounds of the Institution and the Public School are separated only by High Street, so that they might be very conveniently conducted under the superintendence of one headmaster. The children attending the two schools belong to the same classes
Page: 431↓
of the community. The subjects taught and the range of instruction provided for in both schools are practically the same. The abolition of fees has materially altered the situation as regards these two schools, and the reason formerly prevailing for the establishment and separate maintenance of a school in connection with the Institution as a free school is no longer valid. The two schools have no distinctive character to warrant their continued separation, each having classes for every standard of the code and for practically the same specific subjects, and a full staff of teachers; and at the present time there is much overlapping in the work of the two schools, and serious waste of teaching power, and also unnecessary expenditure. The proposed alterations are unanimously approved of by the Governors of the Institution and by the School Boards of Forres (burgh and land-ward), Rafford, and Kinloss. It is now proposed, with the consent of the Scotch Education Department and the said School Boards, to make over the school connected with the Institution, with the use of the buildings and pertinents, and a portion of the revenue of the endowments which has hitherto been expended by the petitioners in maintaining the school, to the said School Board of the burgh of Forres for the purpose of the establishment and maintenance by the Board of an improved secondary department in connection with the Forres Public School. The petitioners believe that the usefulness of the endowments will be extended by their being applied towards the maintenance of such a department. It is necessary for the carrying out of said proposal that the provisions of the scheme of the trust should be altered. The petitioners have drawn up and adjusted with the Scotch Education Department a schedule, which is annexed hereto, containing the necessary alterations, which are not contrary to anything contained in the Educational Endowments (Scotland) Act 1882.” They therefore craved the Court to alter the scheme in terms of the annexed schedule.
In the said schedule the following alteration, inter alia, was proposed—“IV. Section 27 of the scheme shall be cancelled and the following section shall be substituted therefor:—‘The Governors shall make over the use of the buildings of Jonathan Anderson's Institution, the playgrounds, teacher's house, outbuildings, and garden, to the School Board of the burgh of Forres for educational purposes, and shall also pay over annually to the said Board that portion of the revenues of the trust which by section 27 of the said scheme, hereby cancelled, is available for the salaries of teachers, and the said School Board shall administer the same for that purpose with a special view to the establishment and maintenance of an efficient secondary department in connection with the Forres Public School.’”
On 25th November 1895, Mr Fleming, advocate, to whom the Court remitted to consider the proposed alteration and to report, reported generally in favour of the alteration of the scheme, which, he thought, “would result in a much more beneficial employment of the trust funds than is possible at present, and is desirable.” The reporter continued—“But I think that the method in which the petitioners propose to make this change is open to criticism. They propose that they should hand over to the Forres School Board their school with the use of their school buildings, and pay annually to them as much of the revenue of their endowments as has hitherto been expended in maintaining the school. In return for this the School Board is to give free education to poor children selected by the petitioners, and is to relieve the petitioners of all their powers, duties, and responsibilities as managers of the said school. This obligation on the School Board to give free education to poor children is merely nominal, as education is given free to all children in Forres, and it is difficult to see how it could be enforced, for the annual transfer of income to the School Board is not made conditional upon their obligation being duly fulfilled. A further consideration arises from the doubt whether such an application of these funds would not be truly in relief of rates. The School Board has already in operation a secondary department, and to allow charitable funds to be applied as proposed, to render this department more effective, seems to be a violation of the principle laid down in the Prestonpans case— Kirk Session v. School Board of Prestonpans, November 28, 1891, 19 R. 193. I would submit that it is inadvisable to divest the petitioners of their duties to such an extent and under such an arrangement.”
At the bar the petitioners amended the article of the schedule quoted above by making it run as follows :—“And the said School Board shall administer the same solely for the establishment and maintenance of an efficient Secondary Department in connection with the Forres Public School.”
Argued by the petitioners—The Prestonpans case was different from the present one, for here the proposal was to apply the funds to secondary education, which the ratepayers were not bound to supply. This was made plain by the amendment of the schedule which completely met the reporter's objections.
At advising—
Lord President—We have a carefu land useful report from Mr Fleming, and he has very properly called our attention to what at first sight seems a formidable objection to the proposed scheme. The petitioners, however, have now made an important amendment of the proposed scheme, in view of which I think that we may safely grant the prayer. By that amendment it is now made clear that the trust funds are to be administered “solely for the establishment and maintenance of an efficient secondary department in connection with the Forres Public School.”
Page: 432↓
This being so, the moneys of this trust will, under the proposed scheme, in no way go in relief of the ratepayer. It is true that this “School Board has already in operation a secondary department.” But the School Board, while it may quite well have such a department in operation, is not, in a fair exercise of its statutory powers, entitled to impose rates for its establishment or its maintenance; nor could it legitimately so administer the establishment, of which the secondary department forms part, as to make a deficit caused by the secondary department fall upon the ratepayers. Accordingly, I think that the amendment of the scheme enables it to escape the just criticism of the reporter.
I may add that the principle to which the reporter refers was only incidentally illustrated in the Prestonpans case, but it is of unquestionable soundness. If some educational or charitable purpose be one for which it is lawful to impose rates, or to the accomplishment of which public moneys are already dedicated, then it is plain that to give the money of a charitable trust to that purpose is not to further the purpose which is already provided for, but to relieve the ratepayer or the taxpayer, as the case may be, who is by statute made the debtor in an obligation. The Court, if it were to make such an application of trust money, would, under the guise of promoting a purpose which once depended on charity, be ignoring the facts that by legislation that purpose had passed out of the region of charity into that of obligation on the ratepayers, and that a charity devoted to the recipients of education is misapplied if devoted to the givers of education, whether voluntary or compulsory.
The Court granted the application as amended, with expenses out of the funds of the trust.
Counsel for the Petitioners— Jameson— Craigie. Agent— Robert Stewart, S.S.C.