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The Pamphlet Collection of Sir Robert Stout: Volume 60

Papers in the case. 1. Dr Macgregor's Board speech with relative letters. 2. Opinions of Council, with memorial

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Oamaru. District High School

Papers in the Case.

Printed At The "Oamabu Mail" Office, Tyne-Street, Oamaru

Papers on Oamaru District High School.

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Dr. Macgregor's Board Speech.

The following is a verbatim report of the speech which was made by the Rev. Dr Macgregor at the Otago Education Board's meeting when the question of maintaining the status and privileges of the Oamaru District High School was considered:—

We have all said from the beginning that the suppression of this High School is painful to us personally. In the new circumstances becoming unfolded into view, we see more clearly that it is desirable for the Board to feel warranted in refraining from strong action on that line. And one strong plea in justification of refraining is completed by the guarded, courteous, and in every way becoming, intervention of the Minister of Education. In relation to such matters he is to us the nation speaking through its Governmental head of department. In the process for erecting a High School he, by our law, the Minister of Education, is along with the District School Committee, made a party having interest, with a veto or free voice. The Board's part in the process is administrative, like that of a guardian who is a minister of religion, and who marries a consenting bridegroom and bride—one of them his ward. The reason is that the public interest in the matter may be more securely guarded, by the distinct free action of those two parties as natural and appropriate representatives of the public respectively; the Committee representing the local public interest, and the Minister the national public interest. Now that reason applies more strongly in a question of suppression of a High School—compare a question of divorce—for in this question there are new additional interests, arising out of the constitution once created. Here, then, is one plea in justification of refraining:—Not only the suppression has never been called for at our hands by any party having title or interest; it is opposed to the now declared mind of the only parties who have both, on behalf of New Zealand in general, as well as of the Oamaru district in particular. Another plea arises from the fact of there being a question of competency—on the merits of which my motion does not call for any deliverance. The members of the Auckland Board wore heavily fined, on account of their having gone beyond their power in a mere form, though the matter affected was not nearly so important as the existence of a national high school of the people. The criminality in our case would of course be greatly aggravated if the suppressing power belong to Parliament alone, so that our usurpation of it would be a violation of the majesty of Parliament. Apart from consequences thus suggested, a criminal arrogation of power, by an Education Board, for the purpose of destroying a high school under our guardian care, would be a scandalous thing; and on the score of moral propriety of our office we are entitled to keep far from any action that may make that impression. On this account we ought not to display even the comparatively innocent folly of assuming to be, if not absolute rulers of Otago, at least a High Court of Parliament, with power to abrogate a Parliamentary constitution of New Zealand, such as this Oamaru District High School. A coterie of deluded petits-maitres, who vainly imagine that they are kings above law, when really they are but runaway servants of the law, his "silly vassals," masquerading, with mock sceptres and crowns, in stolen fine clothes of their master! If we make that impression we may be only laughed at. But a Board of Education ought not to be ridiculous. Thus the fact of there being a question of competency is important for justification of our abstention from the action in view. Now all the lawyers tell us that power to suppress a high school is not by positive law given to the Board, even with the consent of parties, nor to any other creature: it is left in the hands of Parliament alone. And the power has for the Board no foundation in the nature of the things, as if our erecting power had carried with it the suppressing power by necessity as corelative. The minister who can marry is not on that account able to divorce, even if the husband and wife both desire it; still less, if they both be openly opposed to it; least of all, if it involve a massacre of the innocent fruits page 2 of their marriage:—which things are an allegory. In fine, the competency of the action is so reasonably doubtful as to make it reasonably certain that we ought not to do it—except upon extreme compulsion of that necessity which has no law, and which in the present case cannot be pretended with any decency. For now we observe a third and last plea, which is by the Minister put into a nutshell in his one statement of fact:—The Waitaki Governors have made no provision for girls. That is, so far as regards the daughters of the people in that district, your proposed suppression means ruin,—extinction of the secondary education under your charge. Cruel uncle of babes in the wood! you are turning them out of their father's house intrusted to you for them; and now, behold, the girl is dead: the Waitaki Governors have made no provision for girls. I believe that they cannot make any with their means, and that they are not bound to make any by their Waitaki Act. But we are bound to make it by our Education Act. We have the means in our District High School. And what happens when we have got the school destroyed? The girl is dead. By our action one full half of human kind are thrown out of secondary education. For to them the Waitaki school might as well have been in the moon. Here, for relief from the severity of this argumentation, let us indulge in a little excursion, to look at the free and easy reasonings of our days of merry infancy, before we had believed the Cassandra prophecies of dread reality of disaster to come. For instance, on the ground of the cry, that the Waitaki constitution ought to have been made right (for our purpose) by the Oamaru people, who by law had no more say in that than in the planning of Solomon's temple. In presence of the reality—the girl is dead—that cry now reminds us of pig-shearing, where there is more cry than wool. Who gave us leave to drop our own work of secondary education in order to go railing at other people for failing to do what was not their work? The wrong—if wrong there was—of setting up a High School that does not provide for girls, is it righted by knocking down the only one that does?—as the pious Highlander said of kind providence, "When wan door shuts, anither closes." And, if it be our business to punish wrongs done by other people, do we think it right to lay the punishment, not on the doers of the wrong, but upon our innocent babes? like the true-hearted Scotchwoman who bade her son go and be "hangit for the laird." Now, from the pleasant eddy or side-stream of diversion, let us return to our main stream of strenuous argumentation, and go down upon that dark career. The Minister saw that the girl is dead; and we, directed to the spot, now perceive that the boy is surely and not slowly dying. This was not needed. The Minister, who in his office stands as a lion in the path against suppression, has in his letter, by the one fact about the girl, poured a flood of joyful light upon our desired way toward maintaining the school. In that one clause he touches the point, as in clearness of lightning flash, and with precision and force of a thunder-bolt. Hoe fulmine sternitur liberum arbitrium: that bolt of his demolishes the Babel tower of all our arbitrariness in reasoning and acting. But, sitting among the ruins, we perceive the wider fact, that also for the remaining half of humankind, especially those who are our especial charge, the new school might as well have been on the summit of Mount Cook. In destination a county school, it is in operation a class school for the wealthy. Re secondary instruction our peculiar duty as a Board is to place it within easy reach of the comparatively poor, whose promising children are so interesting and important a part of the nation's true wealth. Hence the fee, in our Otago district high schools, for that instruction in all subjects to one pupil, is by Regulation fixed at 10s a quarter. The Waitaki fee is 10 guineas a year. That may suit the wealthy few in that district; for the unwealthy many in that district a 10-guinea fee shuts the door of the school. And we propose to drive them out of our school, or rather, theirs! Now for a parting diversion, in recollection of the reasonings of our gay and festive youth, before we had believed in that reality now so stern. For instance, our flings at the smallness of attendance on secondary instruction in the district, as if the way to enlarge it had been, to raise the cost of the instruction more than 500 per cent.! But the crowning argument of this free and easy sort was, and down to this present has been, the golden one—We shall save money by the suppression; therefore, go to, let us suppress. That playful argument might do when we did not seriously believe in disaster impending: it might serve as music on our march to the conclusion otherwise resolved on. But now, in harsh daylight of fact—the boy is dying, and the girl is dead—that golden argument no longer appears to be page 3 sterling. It is not even glittering brass. It is only tin, or wood, with the gilding rubbed off by friction of reality. The Oamaru people are not likely to appreciate such a reason for the destruction of their High School by their guardian Board; even the playfulness of it is too utterly like the playfulness of Grandmother Wolf to Little Red Riding Hood. Money will be saved. How much to them? A dead loss of their High School, minus a chance of getting for 10 guineas out in the country what they have hitherto got for L2 in the town. But the nation will gain L150 or L200 a year—the cost of a small country common school. Yes; this ridiculous mouse is the grand result of all that long labor of mountain volcanic! But by that gain the nation loses its people's High School in the capital of North Otago. Truly that golden argument is a wooden one. We could save money by destroying that school—a little. Yes, and we could save more money by turning all our High Schools into common schools; and very much more by turning all schools whatever into warehouses. But that is not the work we are appointed for. Our lawful business is, not to save money by suppression of schools we are bound to maintain, but to spend money in maintaining them according to our instructions. The faithful steward does not save the seed-corn which his master gives him, but sows it where his master bids him. And our master, the Education Act, bids us sow the seed of secondary education in Oamaru District High School. We may say that we have not enough for this held in addition to others. But our master says that what we have is for this field as for the others; by the same right, with the same obligation—unless indeed there be a difference in favor of the Oamaru School as an old Otago High School, not erected by us under the Act, but adopted by the nation in the Act, and there placed under guarantee of public faith of New Zealand to Otago. [What follows was not delivered]. But, says the terrible proverb, "Better a green sod than a stepmother." So may say the orphan heir of Otago "Old Identical." The cruel uncle perhaps intended to turn the babes' estate to such pious uses as the comfort and grandeur of favorite children of his own. We may favor the younger high schools of our own erection; but not at the cost of that older one As if, "Esau was the first-born, but Jacob inherited the blessing." George Whitfield, when first awakened, and not much enlightened, sought the means of being kind to the poor by stealing coppers from his mother's till. That was good in purpose, but not strictly honest in George. And a Board of Education must not do such things. We really have no right in mere honesty to lay out on other schools what is due to Oamaru High School. If this orphan-heir of old Otago be adopted by New Zealand, it must share and share alike with the other children, in either honest poverty or smiling plenty. What would we think of a town council that should, in order to light up favorite streets as brilliantly as heart can wish, cut off the gas of High Oamaru-street, and darken the North Otago quarter? I have been carried beyond the point of my motion. The question about emoluments, involving that of teaching staff, my motion proposes to postpone for consideration. It may be best that it should be deliberated on apart from this discussion, calmly and quietly, as a matter of business administration, in the exercise of our large discretion as to emoluments and teaching staff of a high school under the Act. But—as to ground or principle of conferring—I now will say that in my judgment we ought not to deal with this Oamaru school in any exceptional way of unfavorable contrast to our other schools of the same class. Of course, in this case as in all others, we shall pay due regard to economy as permitted by any special circumstances. But I think we should do this only as we might have done it if there never had been a question about turning this High School into a common school. Otherwise, we occasion dissatisfaction to the parties interested, and lower the efficiency of the school; and probably save very little money after all. If we even provide for girls, it must be on the footing of a District High School under the Act; the only provision we can lawfully make for girls will thus do for boys as well. Now in a High School under the Act, a headmaster is statutory; and in a large school for girls as well as boys one of the other teachers would require to be high-class. Their salaries, of course, would be according to their professional standing; for there is no conceivable reason why our Oamaru teachers should in this respect be put on a lower footing than that of other teachers of the same standing under our Regulations. Well, if you thus have the more framework or nucleus of a High School, such as it must be if the thing be there at all, the possible saving that remains, out of the L150 or L200 beyond cost of common education in the school, will be page 4 found insignificant as compared with the difficulties and perils created by treating the school in an unfavorably exceptional manner. There is no cause, no necessity, no justification, for branding Oamaru district by exceptional treatment. But this matter I propose to take ad avisandum. The present question is only of the existence of this High School. And that for us comes to be, Lord Melbourne's question, "Can't you leave it alone?" All this long labor of "Double, double, toil and trouble," has been caused by our not leaving it alone. Now let us leave it alone, standing as it was long before this Board existed; and so, as Abraham Lincoln said, "let us have peace."

The following motion, proposed by Dr Brown, was passed:—"That, in reply to the Minister of Education, he be informed that the Education Board is prepared to carry on the Oamaru District High School for two years, or until the endowments of the Waitaki High School are applied to their proper use."

Letter to Oamaru Schools Committee.

The following letter, which has been addressed by the Rev. Dr Macgregor to Mr G. Sumpter, Chairman of the Oamaru Schools Committee, has been handed to us (Oamaru Mail) for publication:—

Columba Manse, Oamaru, April 23, 1885.

My Dear Sir,—While congratulating your Committee on the so far successful defence of their High School, I take the liberty of calling their attention to some things fitted to weaken or undermine it, which at the same time reflect upon the sincerity and truthfulness of the Schools Committee, as well as of the series of unanimous public meetings of citizens, in representations laid by them through memorials and deputations before the Education Board.

1.A member of Board, at its meeting last week, said that the maintenance of the High School is not seriously desired by the people of Oamaru. This would imply that the mind of the people of Oamaru has been persistently misrepresented, both by their accredited representative the Schools Committee, and by themselves in unanimous public meetings of citizens. And it might be well to inquire how—from what occult source—the speaker has come to know the mind of the the people, thus misrepresented by your Committee and by themselves.
2.On the same occasion the same speaker maintained that the High School is not really needed here for its purpose of secondary instruction, on the ground that this is given in our common schools—the North School is the one he specified. The secondary instruction for which a High School is intended to provide has to be given within the school hours, by teachers of approved qualification for instructing in secondary subjects, devoting to thin work so much of their time and strength within those hours, which of course is withdrawn for that purpose from the work of primary education in the school. A man who does not know the subjects cannot teach them as a horse cannot [unclear: fl]. A common school teacher cannot in school hours even lawfully attempt to give secondary instruction, consistently with his obligation to give his whole time and strength in the school hours to the work of primary education. I therefore assume that it is not attempted in our Oamaru common schools. But, in view of what has been publicly alleged at the Board meeting by a member of Board, I submit that your Committee ought to make it unmistakeably clear to the public that no such attempt shall be permitted under their administration of public educational trust.
3.In support of that allegation an appeal was made to a fact, to which the Committee's attention was directed many months ago by the statutory meeting of householders, viz., that in our Oamaru schools there are pupils beyond the standards or the age permitted by law. Where there is no High School accessible to such pupils, a common school teacher may be allowed, though necessarily at the cost of some loss to the statutory education from distraction of his time and strength, to indulge a natural unwillingness to lose pupils, and perhaps a natural willingness to gain money, by retaining them beyond the statutory limit. But where there is a High School, the practice is not only technically unlawful, and materially unfair to the High School and its teachers. It is doubly injurious to the people's vital interest in the true education of their children. On the one hand, while the primary instruction is lowered in efficiency, they are tempted, by the offer of a gratuitous substitute for the High School instruction, to occupy their children's precious season of young life with whatever sort of substitute a common school teacher, under no check of qualified inspection foreseen, may happen to be disposed and qualified to give, in fragments of time and strength wholly due to other work. On the other hand, the practice counteracts the endeavor of the Schools Committee, the citizens' public meetings, the Minister of Education, and the Education Board, to give the statutory secondary instruction, made sure within the school hours, through teachers known and attested as qualified to give it, and bound to devote to this work a due part of their time and strength in school hours, subject to systematic inspection on the Board's behalf. To secure this great advantage for the people, on terms placing it within easy reach of all classes and both page 5 sexes, was from the beginning the avowed intention of the so far successful campaign for continued maintenance of the High School. That practice goes directly to frustrate this intention, by weakening and undermining what in the public interest ought to be loyally supported and strengthened. And it is fitted for the purpose to which it has been made subservient, as ground of contending for suppression of the High School;—a suppression which for Oamaru district would be simply a dead loss, for the common school education of the people is otherwise made fast and sure to them by law. The obvious inference is, let the practice be strictly prohibited.

Yours truly,

James Macgregor.

P.S.—I give this letter for publication to local papers. J.M.

Major Sumpter,

Chairman of Oamaru Schools Committee.

Letter to Members of Education Board.

Oamaru, To—, Member of the Education Board, Dunedin.

Dear Sir,—Our deep interest in the matter is our apology for addressing you, as a member of the Board of Education, in connection with the recent letter of the Minister of ducation re Oamaru District High School. We observe with satisfaction his view that the school should remain in standing a school of secondary education under the Act. Recognising the necessity of the proposed provision for the secondary education of girls, we cannot admit that in a high school under the Act there ought not to be provision for the secondary education of boys, and we have always maintained that Waitaki High School "does not place secondary education within the reach of all classes and both sexes." On this understanding we will gladly do what in us lies for amicable settlement and harmonious administration of the matter. It will be a most welcome relief to us if the Board enable us to withdraw from appearance of collision with a body which we desire to hold in due honor as entrusted with the guardian care of education in otago.

We think it seasonable to submit the following as our view of the case:—The standing of the school, as one of secondary education, is for this district an inheritance from the provincial constitutions of Otago, placed by the Education Act under colonial guarantee of New Zealand. The proposal to reduce it to the footing of a common school was not called for by any party having interest or title; but has been persistently reclaimed against, as in violation of a vested right, on behalf of the real beneficiaries here, by the Schools Committee and by the Oamaru citizens in public meeting as a body.

As compared with the great loss of the people's heritage of secondary education in this district, the expected pecuniary saving to the nation as a whole—some L150 a year—is really insignificant. And on our part it has been maintained from the outset that the proposed reduction is ultra vires of the Board, which has power to administer the constitution of the school under the Education Act, but has no power of law to destroy that constitution. This view of law regarding competency is in harmony with the professional opinions obtained at the outset from Messrs Hislop and Creagh (hereto annexed) by the Schools Committee, and from Mr Robert Stout by the Education Board. And now it is amply borne out by the opinion (of which extract is hereto annexed) of Messrs Stewart, Holmes, and Denniston, regarding the case as it now stands. But if there be a working agreement on the basis that has been suggested, the legal question as to competency can be left in abeyance.

I am, your obedient servant,

George Sumpter

, Chairman of the Schools Committee and of Conference of Citizens.

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,


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.


Robert Stout.


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