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James Morison vs School Board of Glenshiel #52ancestors

August 13, 2020

Professional genealogist and podcaster Amy Johnson Crow has put out the challenge to genealogists and family historians, to write stories about 52 of their ancestors in 52 weeks. I am happily taking up the challenge, and look forward to writing stories, that will collate many years of research results. In most cases, the research for my ancestors is not complete, and possibly never will be complete, but I’m hoping to build a story of the lives they lived with the information I have to hand.

I’m hoping to publish these stories in a book at the end of 2020. Each week a prompt will be given as the theme for the week.

Week 33: Trouble Maker

James MORISON, brother of my great great grandfather, Farquhar MORISON, is the ‘trouble maker’ featured in this post.  His father, William MORISON was the school master of the Parochial School in Glenshiel. He was also the registrar for civil registrations.  It appears that he held this position until his retirement, when his son, James took over the position. After the trouble that James had which is outlined below, his sister Jane, took over the position, along with that of registrar.

The document for this court case is almost 10,000 words, so I have outlined excerpts only.

Scottish Court of Sessions

Scottish Court of Session, Inner House, Second Division
Friday May 28, 1875

12SLR473
Morison vs School Board of Glenshiel

Facts:
A School Board dismissed a parochial schoolmaster on account of inefficiency arising from his own fault. The resolution of the Board was sanctioned by the Education Board. In an action of declarator by the master to be found entitled to a retiring allowance.— Held that the dismissal having been carried out bona fide, and having been sanctioned by the Education Board on the ground of personal fault, the schoolmaster had not a good action for a retiring allowance on a general denial that the unfitness for which he was removed was due to his fault.

Excerpts from Headnote:

This was an action at the instance of James Morison, parochial schoolmaster of the parish of Glenshiel, against the School Board of that parish, for declarator that the defenders were bound to pay to the pursuer, whom they had removed from office, a retiring allowance.

The pursuer was appointed schoolmaster of the parish of Glenshiel in 1860. In April 1874 the School Board obtained a special report from Her Majesty’s Inspector of Schools for the district, which certified the pursuer’s inefficiency, and on the 15th June they passed the following resolution:—“The special report under section 60 (2),‘Education (Scotland) Act, 1872,’ on the Glenshiel Public School by Mr J. MacLeod, H.M. Inspector of Schools, was read, and the clerk stated that a copy of this report had been sent to Mr Morison, the teacher. The School Board having considered the said report, and finding that Mr Morison has failed to make any communication to this meeting, of which he had notice, and a copy of the special report having been sent to him, they have no hesitation in coming to the conclusion, on the strength of this report and from the knowledge of the majority of the members of the School Board of the circumstances of the case, that the teacher is unfit by his conduct, and inefficient from his own fault, and that, in justice to the inhabitants of the parish, he should be removed from the office of teacher. They therefore resolved, subject to the confirmation of the Education Board, to dismiss, as they hereby do dismiss, the said Mr James Morison from the office of teacher of the Glenshiel Public School aforesaid, together with all the privileges and emoluments attaching thereto; and they respectfully trust that the Educational Board will grant the necessary confirmation of this judgment and resolution.” The Board of Education for Scotland confirmed the foregoing judgment, removing the pursuer from office on 24th July 1874.

The pursuer pleaded that, as his removal was not occasioned by any fault on his part, he was entitled to a retiring allowance.

The defenders, inter alia, pleaded that they ought to be assoilzied, in respect the pursuer having been removed for inefficiency caused by his fault, he was not entitled to a retiring allowance.

The Lord Ordinary ( Young) pronounced the following interlocutor:—

“6 th February 1875.—The Lord Ordinary having heard counsel for the parties, and considered the record and process, Sustains the defences: Assoilzied the defenders from the conclusions of the summons, and decerns: Finds the pursuer liable in expenses, and remits the account thereof, when lodged, to the Auditor to tax and report.”

Opinion.—This is an action by a schoolmaster, removed under clause 60 (sub-section 2) of the Education Act, 1872, for unfitness and inefficiency, to recover the retiring allowance to which he alleges right under the provisions of that clause. The action proceeds on the same construction of the clause which I rejected in a similar action at the instance of the schoolmaster against the School Board of Logiealmond. The parties here were not content to abide by the final decision in that case, and I was not unwilling to hear a full argument from the able counsel who represented them, and to reconsider the opinion which I had previously formed on a question of novelty and interest. In deciding the Logiealmond case, I assumed that the management of the school (in the ordinary sense of the term management) was by Act committed to the School Board, with the power and duty of seeing to its continued efficiency as an educational establishment, and of removing the teacher if in their judgment the school should at any time fall into a state of inefficiency by reason of his unfitness. It was not suggested in argument, nor did it occur to myself as a reasonable or even possible view of the Act, that the School Board were only managed, to the effect of seeing that the material and mechanical appliances of education were provided with due economy to the ratepayers, and had so little concern with education itself that they were not at liberty, without the teacher’s leave, to visit the school for the purpose of satisfying themselves that it was efficiently conducted, but only to see that the building in which the children were taught was sufficiently commodious, and kept in decent repair. In the view that the members of the School Board were chosen by the constituency, not from any confidence in their ability to manage the schools as educational establishments, and to take care that they should be efficiently taught and conducted, but only as likely persons to see to the condition and repairs of the school buildings and furniture, I should have had some difficulty in dealing with the case of the removal of a teacher by such a Board, because they considered him ‘incompetent, unfit, or inefficient.’ The language of section 60 might have been found too strong to admit of the removal with all its consequences being resisted, but it would have been impossible not to feel that the Legislature had unfortunately and quite inexplicably committed an important and delicate duty to a body which, as being chosen for a very different kind of duty, were presumably unfit to discharge it, and were even denied the most obvious and apparently essential means of enabling themselves to perform it with such intelligence as they might accidentally possess. In such a case a court of law would at least regard the proceedings with considerable distrust, and, attaching no importance or weight to the opinion of so incompetent a body, would be disposed to strain the construction of the statute in order to compensate the dismissed teacher with a pension.

With respect to the parish and burgh schools, which constitute a considerable though ever-decreasing proportion of the public schools under the Act, the whole powers and duties of their former managers, viz., the heritors, ministers, and town-councils, are transferred to the boards, while all power of interference by church courts is taken away. The power and duty not only of providing suitable buildings and furniture, but of appointing and removing teachers, is expressly conferred and imposed on the boards.

The whole powers and duties respecting the material appliances, and the personal staff of every school established under the Act in any district, being thus conferred and imposed on the school board of that district, it was perhaps superfluous to provide, as section 36 does in express terms, that ‘the school board of every parish and burgh shall maintain and keep efficient every school under their management,’ for this would probably have been implied.

It is true that, by a rule of which I believe there is no example elsewhere in any case at all similar, the parish schoolmasters of Scotland held their places for life. That this was an inconvenient and inexpedient rule appeared (so, at least, Parliament thought) not only from the experience we had of its operation, but from the conduct of mankind, proceeding on experience, in every department of life and business

When, therefore, the school board in this case required a special report from the inspector, I must assume that they had previously, after due deliberation, and in the intelligent and honest discharge of their statutory duty, come to the conclusion that the pursuer was ‘incompetent, unfit, or inefficient.’ These expressions are almost undistinguishable in meaning, and really only aid each other exegetically. On resuming consideration of the case with the inspector’s report, they had ‘no hesitation in coming to the conclusion, on the strength of this report and from the knowledge of the majority of the members of the school board of the circumstances of the case, that the teacher is unfit by his conduct, and inefficient from his own fault, and that in justice to the inhabitants of the parish he should be removed from the office of teacher,’ and they pronounced judgment removing him accordingly. Nothing remained but the application of the second statutory check, and it was applied, with the result that the judgment was confirmed by the Board of Education.

In condescendence 3 the pursuer declines to admit the regularity of the proceedings; but the only criticism which he makes seems to me to be unfounded, and no conclusion or plea is put upon alleged irregularity. The action assumes regular and effectual dismissal under the Act, and concludes for a retiring allowance on the ground alleged in condescendence 4, that the pursuer ‘denies, and it is not the fact, that there has been any incompetency, unfitness, or inefficiency on his part which is or has been due to his fault.’ The pursuer makes no other averment, but calls on the defenders ‘to specify in what particulars the pursuer has been guilty of fault in the discharge of his duties’—a call which the defenders, disputing the pursuer’s right to make it, answer by alleging intemperate habits, neglect, and frequent absences, from his duties.

The question thus raised for decision seems to be whether a teacher who has been removed under clause 60 (subsection 2) of the Act has a good action for a retiring allowance on a general denial that the unfitness, &c., for which he was removed was due to his fault; and I am of opinion that he has not.

Removal without pension was authorised in the case of a teacher who ‘from negligence or inattention has failed efficiently to discharge such duties.’ The defenders say that the pursuer ‘is unfit by his conduct and inefficient from his own fault,’ and this is on the face of their judgment, which the Board of Education confirmed. The pursuer denies ‘fault,’ but as he does not allege ‘infirmity or old age,’ I fail to see how he can have right to a pension. Had he been removed under the Act of 1861 it must have been for ‘negligence or inattention,’ for he is not old or infirm, and it seems clear that the heritors could not have granted him a pension. But if this be so, the school board which removed him under the Act of 1872 have no power to grant him a pension for the power of the heritors under the one Act is the measure of the Board’s power under the other.

Judgment:

At advising—

Lord Ormidale—I do not understand that the master complains of irregularity in the procedure of the Board. There is no question of the Board having gone out of the statute or exceeded its powers. The action is framed as if the pursuer was not dismissed for fault. The statement in condescendence 4 is important as to the relevancy of the action. “The pursuer does not admit that he is incompetent, unfit, or inefficient. On the contrary, he avers that he is at least as competent, fit, or efficient as he was when appointed in 1860. In any view, he denies there has been any incompetency, unfitness, or inefficiency on his part, which is, or has been, due to his fault. The defenders are called on to specify in what particulars the pursuer has been guilty of fault in the discharge of his duties.” This is a very negative statement on the pursuer’s part. The defenders explain in their answer that the unfitness and inefficiency of the pursuer are caused by his own negligence and fault. The question is, whether, because the pursuer denies this charge, he is entitled to have a trial of it in an action at law. I think he is not.

I entirely concur with the Lord Ordinary’s view, that it would be contrary to the intention of the Act, and detrimental to the public interest, to put a School Board which has dismissed a teacher in the same position as a defender in an action for slander, by calling on them to condescend upon and prove the veritas of the grounds on which they proceeded.

Lord Neaves—I am for adhering. We have a statement here by the Board that the teacher is unfit by his own conduct—not by his backwardness in attainments, or from any physical disqualification—but from his own fault to conduct the school efficiently. There is a plain statement of personal fault amounting to delinquency, of inefficiency caused by the conduct of the pursuer, which I hold amounts to a charge of misconduct. Was it necessary for the Board to specify the particular name of the fault? I do not think it is necessary for them to go into all the details.  The Court are not to distrust a responsible statutory body like a School Board, and will not as a general rule allow investigation as to the existence of fault found by them to exist. Hence there is enough to show that the dismissal proceeded on the ground of moral fault, and that is sufficient to exclude the demand now made.

Lord Gifford—I concur. My difficulty is that, while the statute provides that where “such resignation shall not be occasioned by any fault on the part of the schoolmaster the heritors shall grant a retiring allowance.” It does not say “of which fault the School Board are to be the sole judges.” Can we make out such a finality from the statute without express words? I think we can. I think it is the sound and salutary construction of the Act. I think the School Board is to be the judge of fault, subject to the checks of a report from an inspector and the sanction of the Education Board. It was not intended that every dismissed schoolmaster should have the power of bringing an action against the Board, leading a proof, and causing immense inconvenience. Then there is no provision for trial by the School Board, and we would really try the question for the first time. It is strong to say that the schoolmaster can bring a new trial before a body of strangers.

Lord Justice-Clerk—I concur in the opinions which have been expressed, and think the result sound and satisfactory. I reserve my opinion on some points touched on in the note of the Lord Ordinary. In particular, as to how far section 60 of the Education (Scotland) Act gives any power to School Boards beyond that given by section 19 of the Act of 1861. The dismissal here was in consequence of the fault of the schoolmaster, which is set out sufficiently: the School Board alone are the judges of the fault, their actings were bona fide; there is no case of oppression here, and the interlocutor of the Lord Ordinary must be sustained.

The Court pronounced the following interlocutor:—

“The Lords having heard counsel on the reclaiming-note of James Morrison against Lord Young’s interlocutor of 6th February 1875, Refuse said note, and adhere to the interlocutor of the Lord Ordinary, with additional expenses, and remit to the Auditor to tax the same and to report.”

Counsel for Reclaimers— Mackintosh and J. P. B. Robertson. Agents— Tods, Murray, & Jamieson, W.S.

Counsel for Pursuers— Keir and Dean of Faculty (Clark). Agents— Gifford & Simpson, W.S.

 

[1875] SLR 12_473

http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0473.html

https://www.casemine.com/judgement/uk/5a8ff81c60d03e7f57eba3a9#4

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