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The Pamphlet Collection of Sir Robert Stout: Volume 60

Memorial for Counsel (by Sub-Committee of Citizens' Conference)

Memorial for Counsel (by Sub-Committee of Citizens' Conference).

The Question Generally.

A conference, being of the view that the people ought to proceed to test the legality of the Education Board's action, have in structed a sub-committee to obtain professional advice on the question, in what way it would be wisest and best to take that action, for the practical purpose of securing the continued maintenance of the High School as now constituted. It has been suggested that the public meeting, instead of leaving this special matter of abiding constitution to the yearly Schools' Committee for ordinary general administration, should entrust the care of it to a Defence Committee elected for this purpose, which may include members of School Committee, and at whose request some one citizen, guaranteed against expense of the action, might be the party in whose person the case shall be tried. Even here at the outset the advice of a practical expert would be of value for the purpose of making sure that the mode of proceeding is wisely selected. But supposing a party to be constituted in the right way, and arrangements made for directing and maintaining the action, there is, also and especially, need of such skilled advice regarding the nature and time and place of the action that should be taken on the citizens' behalf in the case.

Initial View of the Matter.

In relation to external history of this matter, as distinguished from the action of the Board in relation to it, it may be important to keep in view the fact that on the page 6 Board's behalf the only reason alleged for the action has been the erection of Waitaki High School. In a letter intended for the people of Oamaru, published in the North Otago Times on the morning of the public meeting of the 29th October, 1883, Professor Shand, as Chairman of the Board, carefully explained as the one reason for disrating the Oamaru School that the erection of the Waitaki High School, making a statutory provision for secondary education in the district, had, in effect, made it necessary for the Board to discontinue the maintenance of the Oamaru School for secondary education. The ground thus taken had reference, not to anything about the management of the school, but solely to the constitution of it as a school of secondary education. And, after it has become clear that the Board have no power of law to tamper with the constitution, still the one real ground alleged for the Board's proceedings has had reference to the constitution, as being a thing superseded and made useless by the erection of Waitaki School. The citizens of Oamaru, on the other hand, have not allowed themselves to be led, in the interest of their town school, into any assault upon the Waitaki School. That school, they have represented, is under a Board of Governors, who are not responsible either to the people of Oamaru or to the Education Board, and who are fully entrusted by the nation with the constitution and administration of it according to their own judgment for the purpose of its existence. And in relation to it what falls to be said to the Board is this:—
(1).In fact, the Waitaki School does not, and cannot, serve the purpose of a town school of Ormaru for secondary education. Its working constitution excludes all girls, and the scale of fees makes it practically inaccessible to those boys within whose reach the Education Act proposes to place means of qualified systematic secondary instruction.
(2).The Oamaru people have no power of right to reconstruct the constitution and administration of Waitaki School, so as to adjust it to the requirements of the town, or make it for their sons and daughters equivalent to a people's school of easily attainable sound secondary education.
(3).Above all, the people already have a school for that purpose, which has come down to them as an inheritance from the old provincial constitutions of Otago, now guaranteed to them by the education Act of New Zealand. And over this school the Education Board has by law no power of life and death: in relation to the school their only power, their statutory duty, is to maintain it as a school of secondary education under the Act.

From that external history the obvious inferential suggestion is, that the Board, having at first inadvertently assumed an untenable position in relation to the law, are persevering in the purpose for which that position was assumed, while endeavoring to conceal the unlawfulness of the position; and that the citizens, on the other hand, in defence of their vested interest as guaranteed by law, have to repel an unlawful violence to that interest threatened by the statutory guardians of the same. This practically is the kernel of the case as a real thing. Counsel will advise us how to make this prominent in the form of proceedings, and prevent it, in the throng of technicalities, from lapsing out of view of jury or judge.

The Board's Action.

1. It is very important to keep clear in view what really has been the substantive action of the Board, as distinguished from this and that suggested construction of the action. The substantive action is what was defined by the Board itself, in the original resolution of 18th October, 1883, viz.: disrating, to the effect of dealing with the High School as a common school. This, and this only, is the thing proposed to be done, as declared by the Board itself both in that original resolution and all through the subsequent relative action of the Board. Disrating, to the effect of dealing with the school as a common school, is alone the action of the Board as defined by the Board itself. It is the only thine in the Board's action that has been reclaimed and protested against by the citizens of Oamaru and their representatives.

2. As to the Board's proposed form of proceeding. by the way of reducing the educational apparatus—numbers and emoluments of teachers—to the common school scale, it is very important to observe that this, in avowed intention as well as inevitable effect, is a way, not of duly maintaining the school as a school of secondary education under the Act, but of lowering it into the position of a common school. Messrs Hislop and Creagh, while intimating that the Board have not power of law to disrate the school, called attention to the circumstance, that the Board are by law empowered to determine the scale of apparatus, beyond Head Master, to be employed for maintenance of the school. And the Hon. Robert Stout, in his opinion as counsel to the Board, while in like manner intimating that the Board have not power to reduce the school expressly, pointed out a way in which the power, in relation to number and emoluments of teachers, given to the Board for the purpose of maintaining the school as a High School, might conceivably be so employed as really to reduce it to the position of a common school. And this is what the Board mean to do, effectively and avowedly, and are proceeding to do.

(1). Effectively, to reduce the school to the common school level in respect of educational apparatus, is in this case inevitably to reduce it from being a High School, page 7 in respect either of respectability or of continued efficiency. For working purposes of secondary education here the difference between "express" and oblique disratement is only in words. The guardian breaks his trust who, in the use of discretionary powers for the purpose of secondary education to an heir, provides the means only of primary education. Killing is murder though the stroke should be not a downright but a slanting one; or though the instrument should not be open violence but slow poison or starvation. And (2) avowedly, what the Board mean, what they are proceeding to do, is not to maintain the school (poorly or starvingly and disgracefully) as a High School, but to break down the constitution of it so as to place it on the footing of a common school. The proof of this is contained in the terms of the original resolution, in the clear light of all the subsequent resolutions of the Board. All the relative action of the Board has been, solely and simply, in pursuance of that resolution, to place the school on the footing of a common school. For instance, they show what they mean by suitably maintaining a High School in the published Regulations regarding scale of teachers and salaries for such a school. From such bye-laws, even from ordinary resolutions, they are forbidden by law to depart without a previous process of notice of motion and warning to all members of the Board. There has been no such previous process in this case:—plainly because the school is already being treated as not a High School but a common school. Again, to place the school on the footing of a common school is, alone, set forth as the intended effect of the original resolution, by the Secretary of the Board, in his official intimation to teachers of the impending operation of that resolution, in reducing their number and their salaries. And finally, the Board, after that official intimation under their instructions, when their attention was called to the Oamaru people's pretest against the resolution as thus understood and applied, have refused to depart from it, and resolved to proceed to carry it into definitive operation.

The question here suggested is, of course, What is the best way of proceeding to prevent that action from becoming definitive to its intended effect, discontinuance of the school as one duly maintained for secondary education under the Act.

The Question in Details.

1.As to the kind of action (1) it has been suggested that it might be, application for a mandamus, requiring the Board to do its public duty, by suitably maintaining the school, as one for secondary education under the Act. The need of this might be shown by the fact that the proposed redaction is inconsistent with the Board's own regulations regarding suitable maintenance of a High School, and by the Beard's own persistent declaration of its meaning as being, discontinuance of that maintenance, and putting a common school in place of the High School. (2) Would it be wise for the town to repose its case wholly on the ground of illegality? Though abstractly permissable by law, might not a jury or judge find that the Board's action ought to be disallowed as really a neglect of public duty, if not a breach of public trust? Here the whole question, about proposed kind of action in New Zealand, under the circumcumstances of the present case, is emphatically one for the practised judgment of professional experts; and we request an opinion irrespective of the above suggestion and query of ours.
2.As to time of action. Delay as such is so far evil as tending to "demoralise" the school at present through disheartening uncertainty about the immediate future. And it is conceivable that through delay we should let slip the opportunity of guarding this or that point by protestation on behalf of it at the right moment. On the other hand, it may be a tactical blunder to go too early into action, cutting before the point. (1) Would it be wise at once to warn the Board of a purpose to contest their action? (2) Would the end of the year, when the reduction of apparatus comes into legal effect, be early enough for raising a case? (3) Would it be early enough, and the best time, at the end of the first quarter or month of next year, when the reduction is first felt in a lower payment of salary? Counsel will kindly advise us, generally, how to time the action (perhaps variously) according to its nature (perhaps varying at various stages),
3.As to the place of action. Should it (in the first instance) be in the District Court in Oamaru? Or, ought it to go (at once) to a central Court? And, if to a central Court, would it be wise to think of going to Christchurch instead of Dunedin (so as to be clear of provincial influences)?
4.As to party, with support. What do you think of the suggestion in the first paragraph of this paper? Or, generally, what, in your opinion, would be the best way of constituting for action on the citizens' behalf?

Opinion (on the above) of Stewart, Holmes, and Denniston.

Dunedin, Messrs Hislop and Creagh, Solicitors, Oamaru.
Dear Sirs,—We have given careful consideration to the question submitted to us in yours of the 11th inst., on the subject of the Oamaru High School with the following results:—
1.We agree with the opinion of Messrs Stout and Hislop that the Educational Board has no power to disrate the High page 8 School; that is, to alter its status, its name, or its duties.
2.We do not think the Board is entitled to effect this object indirectly, by treating the High School practically as a school of a lower grade. We think the object of the Legislature must be assumed to have been to preserve to the inhabitants of any district possessing High Schools, at the time of passing the Education Act of 1877, a school competent by number and efficiency of its teaching staff and otherwise to afford the course of instruction mentioned in section 56 of the Act, in addition to the course of instruction in ordinary public schools. The powers granted to the Board by the Education Act in the way of administering the funds at its disposal, are undoubtedly very full and ample; and the Courts will of course not interfere with its discretion except in extreme cases. We think, however, that such a case arises when the Board is not merely unwisely, though honestly, exercising its discretion; but when it is exercising such discretion on a wrong principle and acting with obvious injustice. (See Hayman and Governor's Rugby School, 43 L. J. Ch. 835, L. R. 18 Eg. 28.) In this particular case the Board is using its assumed discretionary powers, under the Act, for the declared purpose of doing indirectly what it has no power to do directly, and depriving the inhabitants of Oamaru of the rights which are given them by the Act.
3.Assuming the authority of the Supreme Court to interfere to prevent the improper exercise by the Board of its powers, we think the proper course is to institute a suit by the Attorney-General on the relation of one or more of the inhabitants of the district of Oamaru against the Board, to obtain an injunction restraining them from dealing with the Oamaru District High School in the manner threatened, and partially carried out by them, or from treating it on a different basis than that of other District High Schools. The right of the Attorney-General to exhibit informations on behalf of parties injured by the action of public bodies has been frequently exerised. (See "Daniels' Chancery Practice." vol. i. p. 8.) As to the applicability of the process to such a body as the Education Board, see Reed on Injunctions, p 572; Kewin and Lewis 4 M. & P. 254 Kinloch, Secy. of State for India 49 L I. ch. 571 L.R. 15 ch. Dei. 1; Atty-Genl. and English L. I. 44 ch. 229. As to the form of proceeding, see rules 494 to 497 of the Supreme Court Code' 1882. The fiat of the Attorney-General would be granted as of course on the submission of a proper name or names.

We do not think it would be necessary to delay proceedings until moneys payable but for the action of the Board, would have become due; but perhaps it might be as well to delay the actual formal commencement of any proceedings until the beginning of the year, when the proposed "disrating" takes effect. These observations answer your queries numbered 4 and 5. As there are no cases directly bearing on the point, the proposed proceedings must be somewhat tentative.

Should, however, the persons mainly interested consider the question of sufficient importance to make it advisable to obtain a judicial decision on the subject, we think the course we have indicated the one most likely to effect such an object.

Yours faithfully,

Stewart, Holmes, and Denniston.

Hislop & Creagh's Opinion: to Oamaru Schools Committee.

To the Secretary Oamaru Schools Committee.

Sir,—By virtue of its former constitution and the 55th section of the Education Act, the Oamaru District High School is, and, until reduced by the Legislature, will remain, in name at least, a district high school. The Board has no power to reduce the school from a high to an ordinary school.

[unclear: ecin] 35, which summarises their powers, does not author se Boards to disestablish high schools when established. You will, however, see that section 55 leaves it to the Board to say what number of teachers are necessary. Section 56 only says that the higher branches may be taught. We think that the teachers could continue to teach the higher branches, but if instructed by the Board not to do so, and they complied with their instructions, no one could demand that they should be taught. As the Board has also the control of the remuneration of the teachers matters might be so managed that the school would only be a high school in name.

Yours obediently,

(Signed.)

Hislop and Creagh.

Hon. Robt. Stout's Opinion: to Education Board.

There is no express power to the Board, the Committee, or the Minister, to disrate a high school, but I am of opinion that the Board, having the management general y of education affairs [unclear: n] an educational district, would have power to withdraw the grants usually given to district high schools, and to vote such moneys and appoint such teachers as the Board may think lit. This would amount to "disrating," and this is what I assume the Board intends to do. There does not seem to be any need of an application to the Minister of Education.

(Signed)

Robert Stout.

Dunedin,

Printed at the Oamaru Mail Office, Tyne-street, Oamaru.