Scottish Court of Session Decisions

Under the Educational Endowments (Scotland) Act 1882 a scheme had been issued for the administration of Fettes College, and approved by Order of Her Majesty in Council, 3rd April 1886.

The 45th rule or section provides—“Any boy shall be liable, at the discretion of the Governors, to dismissal and to forfeiture of any benefit derived from the endowment for such continued idleness or breach of discipline as shall on report from the headmaster disqualify him, in the opinion of the Governors, for continuing a member of the College. Any boy may also be dismissed summarily for immorality, or whenever, in the judgment of the headmaster, summary dismissal is necessary in the interests of the school. In all such cases the headmaster shall forthwith lay before the Governors a full report upon the subject.”

In July 1884 Michael Christison Piggott was admitted as a scholar on the foundation of Fettes College, Edinburgh. He thereby became entitled to free board and education in said College for six years from the date of his admission, the estimated value of which was about £130 per annum. Upon 19th September he entered the College, and resided continuously there until 7th April 1887. Shortly after his entrance he became affected with a disorder, which was declared to be leprosy by the medical officers of the College, who, however, did not consider it necessary for the pursuer to leave the College at the time.

In the spring of 1887, however, eczema broke out in the school, and when this happened the medical officers considered it no longer safe to allow the boy to remain at school with the other boys, because it was thought possible that he might communicate the leprosy to them through the medium of the other skin disease. They therefore informed the Headmaster of the state of the facts, and the Headmaster summarily dismissed him from the College.

Piggott raised this action against the Governors of Fettes College. He averred that he had been examined by the medical officers of the College before his entrance. That twice before he entered the College he had been attacked by suppurations in his legs, which ran for some time and healed, leaving white cicatrices. He denied that his complaint was leprosy, and that there was danger to the other boys; and he stated that the Headmaster, by compelling him to leave the College, and by forfeiting his foundation, had inflicted on him a very serious injury. He had been deprived of board and education for the remainder of the period of six years for which he had been admitted—namely, about three and a-half years, and had had to commence business with an imperfect education.

He pleaded—“(1) The defenders being bound in terms of the contract libelled to provide the pursuer with board and education for a period of six years, and having failed to implement said contract, they are liable to compensate the pursuer for the loss thereby sustained.”

The defenders pleaded—“(2) By the terms of section 45 of the scheme condescended on, the Headmaster was entitled to dismiss the pursuer.”

Upon 24th November 1888 the Lord Ordinary ( Fraser) assoilzied the defenders and found no expenses due to either party.

“ Opinion.—It is not necessary to define very strictly what is the nature of the relationship between the Governors and youths whom the former have elected to the foundations of Fettes College. It is contended by the pursuer that by his admission to the College as a foundationer a contract was entered into between him and the Governors which the latter could not terminate at their pleasure. Such a case is not presented for decision at present; and no opinion is therefore called for in regard to it. The pursuer of this action was admitted to the benefit of a foundation in September 1884. A scheme for the administration of the Fettes Endowment was approved, by Order of Her Majesty in Council, on the 3rd of April 1886. This scheme is applicable to all persons who had any right or privilege under the governing bodies in charge of Educational Endowments in Scotland, such as the Fettes College, at the time when the Act 45 and 46 Vict. cap. 59, was passed—See section 14. Therefore any rules laid down in that scheme are applicable to the present case. The 45th rule or section is as follows:—‘Any boy shall be liable, at the discretion of the Governors, to dismissal and to forfeiture of any benefit derived from the endowment for such continued idleness or breach of discipline as shall on report from the headmaster disqualify him, in the opinion of the Governors, for continuing a member of the College. Any boy may also be dismissed summarily

Page: 144↓

for immorality, or whenever, in the judgment of the headmaster, summary dismissal is necessary in the interests of the school. In all such cases the headmaster shall forthwith lay before the Governors a full report upon the subject.’ This is not expressed with that clearness and precision that might have been expected in the circumstances of this endowment. The Lord Ordinary puts a different construction upon that rule from that put upon it by the Headmaster of Fettes College. It is stated by the defenders upon record that the Headmaster told the pursuer to leave the Institution for the reasons assigned in the record. This proceeding on the part of the Headmaster was ultra vires. The 45th rule of the scheme gave him no authority to order the pursuer away from the Institution. The only persons who could do so were the Governors, acting, no doubt, upon the report of the Headmaster. The first part of the rule states that ‘any boy shall be liable, at the discretion of the Governors, to dismissal and to forfeiture of any benefit derived from the endowment for continued idleness or breach of discipline.’ And then the rule proceeds to say that ‘any boy may also be dismissed summarily for’ two causes mentioned—viz., immorality, or whenever there are circumstances rendering it ‘necessary in the interests of the school.’ Dismissed by whom? Clearly by the same parties as were to dismiss according to the first part of the rule, viz., the Governors. No doubt the circumstances (other than immorality) must be according to the judgment of the headmaster; but the ultimate judges of the matter are the Governors, and the rule concludes with these words:—‘In all such cases the headmaster shall forthwith lay before the Governors a full report upon the subject.’ The rule is very inartistically expressed, but the Lord Ordinary cannot hold it to mean that the headmaster should have the absolute power of dismissal whenever he considered that the interests of the College required that a particular boy should be sent away. It would be a very extraordinary thing to confer such a power as this on any headmaster, when the first part of the rule limits the discretion of the Governors to dismissal for continual idleness and breach of discipline. The ambiguity arises from not embodying in one sentence the statement that they could dismiss for idleness, breach of discipline, and when it was required for the interest of the school.

But practically the Governors have made the dismissal in the present case according to the statements in the record. All difficulty is obviated upon this head by the Governors coming forward and adopting and defending the action of the Headmaster. They do not plead that the Headmaster acted without their authority or subsequent approval, and therefore that they are not liable in damages. They adopt what he has done, and the Lord Ordinary is willing to hold that this subsequent adoption is equivalent to their approval of the conduct of the Headmaster as if it had been given before the dismissal of the pursuer.

Now, the only other point in the case is, whether or not, assuming that there was no absolute right of dismissal at pleasure, was there sufficient ground in the circumstances of this case to bring it within rule 45? The boy was ill with leprosy when he entered the Institution, although at that time the disease remained dormant. It broke out at intervals afterwards, and the Headmaster said nothing about it, not being willing to do anything that might blight the prospects of the pursuer as a student in the College. This was acting with all kindness for the youth, and no one can blame the Headmaster for taking a course at once considerate and humane. But, then, at the same that the pursuer was dismissed, his leprosy again came to the front; and there being an epidemic of other disease among the boys, it was absolutely necessary to take action so as to prevent the whole of them becoming lepers by contagion. A learned argument was submitted to the Lord Ordinary by the pursuer's counsel to the effect that leprosy was not contagious. Upon this matter the Lord Ordinary is incapable of pronouncing any opinion; but the existence of such a disease in the midst of a community of boys like that at Fettes College was calculated to create such terror as to impair the usefulness of the Institution, and therefore the Headmaster (approved of afterwards by the Governors) was justified in sending the pursuer away. But here again the Lord Ordinary must add that he is not reviewing the action of the Governors or the Headmaster upon the merits. Their bona fides is not impugned. They had a right to dismiss a foundationer when they thought it was ‘necessary in the interests of the school.’ Having come to the conclusion that it was necessary, no court of law can, in the absence of an averment of want of bona fides, interfere with their judgment.”

The pursuer reclaimed, and argued—The Lord Ordinary was right in his reading of the rule, but it was not a good defence to say that the Governors had adopted the action of the Headmaster. The rule provided certain procedure before a boy was dismissed, and if that was omitted the boy was deprived of a safeguard which had been given him. The pursuer was a foundationer, and the 45th rule expressly stated that a foundationer was not to be deprived of the benefits of the College except by the action of the Governors in dismissing him. Even allowing that the Headmaster acted in bona fide, and no allegation of malice or personal ill-feeling was made against either him or the Governors, this was not a case for his discretion, and he should have awaited the result of a report to the Governors. All that was asked was damages. There was no plea for reinstatement of the pursuer in the College. The grounds on which the pursuer asked for a proof were that there was no sufficient reason for his dismissal in 1887. It was known to the Headmaster and the medical men of the College so long back as 1884 that the pursuer suffered from this skin disease; nothing was said about it, and no harm had resulted from it. Even if it was leprosy, that disease was not contagious— Fitzgerald v. North-cote and Another, Michaelmas Term, 1865, 4 Foster and Fin. 656; Hutt and Another v. The Governors of Haileybury College, June 19, 1888, 4 Time's Rep. 623.

Counsel for the respondents were not called upon.