Scottish Court of Session Decisions

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This case arose out of the case of Milne's Executors v. Aberdeen University, reported ante ut supra.

The Universities (Scotland Act 1889 (52 and 53 Vict. cap. 55) enacts—Section 6—“The University Court, in addition to the powers conferred upon it by the Universities (Scotland) Act 1858, shall … have power (1) to administer and manage the whole revenue and property of the University … including the share appropriated to such University out of the annual grant hereinafter mentioned, and also including funds mortified for bursaries and other purposes. … (2) To review any decision of the Senatus Academicus on a matter within its competency which may be appealed against by a member of the Senatus or other member of the University having an interest in the decision, … and to take into consideration all representations and reports made to it by the Senatus Academicus and by the General Council.

…” Section 7—“The Senatus Academicus shall continue to possess and exercise the powers hitherto possessed by it, so far as they are not modified or altered by the Universities (Scotland) Act 1858, or by this Act, and shall have power (1) to regulate and superintend the teaching and discipline of the University.…”

On 23rd May 1906 the University Court of Aberdeen University, who had, by interlocutor dated 16th May 1905 been found entitled to the balance of the residue of the estate of the late Alexander Milne of Aberdeen, “on condition that a scheme for the administration of the same as a bursary fund is submitted by them to and approved by the Court,” presented a scheme for the administration of the said fund. The Senatus Academicus on 26th June were allowed to sist themselves as parties and lodged objections to the scheme.

The scheme, inter alia, provided—“III. The said bursaries shall be open to all matriculated students of the University of Aberdeen, whom the University Court, on report by the Senatus, considers to require pecuniary assistance to enable them to prosecute their studies at the University, and to be by their ability and diligence deserving of such assistance. IV. The bursaries on this foundation shall be awarded by the University Court on report and recommendation by the Senatus as to the needs and merits of the applicants. The Senatus shall be entitled, for the purpose of such report and recommendation, if they think fit, to submit any or all of the applicants to examination in such subject or subjects as they may prescribe.”

The objections included, inter alia:—1. “Article III of the proposed scheme of administration of the ‘Alexander Milne Bursary Fund,' is in the following terms—… [ supra] … The Senatus Academicus have in the past conducted all applications for bursaries in the gift of the University of Aberdeen. Their inquiries are conducted verbally with a view to privacy. If the aforesaid provision were to be approved by the Court, a written report by the Senatus would require to be submitted to the University Court, which procedure would entail a greater degree of publicity. The University Court meets in public. The Senatus Academicus meets in private. The public press is invariably represented at the meetings of said Court. It would be an undoubted hardship on applicants for participation in said fund if their applications were submitted to discussion in public, and this would tend to discourage applicants from coming forward and thus defeat the wishes of the testator.” 2. “The result of the foregoing provision in the event of its receiving the approval of the Court would he that after the Senatus had made full inquiry into the applications for bursaries under the said fund, and had satisfied themselves that certain applicants were proper persons to participate in the said fund, the University Court would have the power to institute and conduct further inquiries. They would be entitled to refuse to recognise the recommendations of the Senatus. The delay involved by such procedure would not be conducive to the practical working out of the scheme.” 3. “The Senatus further object to the first sentence of Article IV of the said proposed scheme, which is in the following terms … [supra] The power to appoint candidates to bursaries connected with or in the gift of the University has from time immemorial been exercised by the Senatus and not by the University Court. The Universities (Scotland) Acts of 1858 and 1889 confer no such power on the University Court. By section 7, sub-section 1, of the Universities(Scotland) Act 1889 the Senatus have power to regulate and superintend the teaching and discipline of the University. The power of appointment to bursaries falls within the scope of this provision. The General Report by the Commissioners under the Universities (Scotland) Act 1889, and relative ordinances by the Commissioners, contain no warrant for such change as that suggested in the proposed scheme, but on the contrary without exception leave the power of appointment in the hands of the Senatus. There is no precedent in the University of Aberdeen or any other Scottish University for withdrawing the power of appointment to bursaries from the Senatus and conferring it on the University Court. The Senatus have on all occasions exercised the power to appoint with due care and discretion. There is no necessity for making a precedent in this case adverse to rights of the Senatus.”

The Senatus lodged an alternative scheme and moved for a proof as to the custom of appointing bursars in the University since 1889.

Argued for the University Court—The Senatus Academicus had no locus standi to entitle them to be heard. This was a matter of administration and management of revenue; to give effect to the objections would be to take away from the University Court their statutory power and to give it to the Senatus, who had been deprived of it by statute.

Argued for the Senatus—This was a matter of teaching and discipline. From time immemorial

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it had been the custom of the Senatus to appoint to bursaries, and this had not been changed by the Act of 1889. A proof on this point, if it were denied, should be allowed—Reference was made to Universities (Scotland) Act 1858 (21 and 22 Vict. cap. 83), sections 5, 12 (1) (6).