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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Church of England reserve at Porirua for educational purposes; statement by the trustees and judgments of the Supreme Court

Front Cover

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Church of England Reserve at Porirua for Educational Purposes.

Statement

By the Trustees and Judgments of the Supreme Court.

Wellington N.Z. Turnbull, Hlckson & Palmer, General Printers Jervois Quay.

1900.
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Porirua College Crust.

I.—History.

The Porirua College Estate consists of 500 acres of rough undulating ground situated at Witireia, which is the north extremity of a slip of land forming the west arm of Porirua Harbour. Here stood in 1848 the principal pah of the Ngatitoa tribe, which at that time numbered nearly 1000 persons, most of whom were settled in this district. Two young chiefs of the tribe, Matene Te Whiwi and Tamihana Te Rauparaha, had studied at St. John's College, Auckland, where, in accordance with the charter, English and Maoris were educated together. Desiring that a similar institution should be established near their own home, which should serve as a centre of education for the southern part of the Island, they and other chiefs made a proposal to Bishop Selwyn. They offered, and he accepted, a piece of land as a site for a "College for the English and Native youth, to be brought up together in the new principles of obedience to the Queen, and faith in our Lord Jesus Christ," (See Tucker's Life of Selwyn, Vol. II., p. 342). In August, 1848, they wrote as follows to the Governor of New Zealand:—

Otaki, "Friend, Governor Grey,

"Greeting. It is a perfect consenting on our part that Witireia shall be given up to the Bishop for a College. We give it up, not merely as a place for the Bishop for the time being, but in continuation for those Bishops who shall follow and fill up his place, to the end that religion or faith in Christ may grow, and that it may be, as it were, a shelter against uncertain storms-that is, against the evils of this world. This is the full and final giving up of that place as a College for the Bishops of the Church of England,"

(Signed by

Te Rauparaha,

Tamihana Te Rauparaha,

Matene Te Whiwi

and five others,)
In reply to this the following minute was written:—

"Acknowledge this, and say that I shall have much pleasure in sanctioning this giving up a portion of their reserves page 4 at Porirua for the benevolent and useful purpose of founding a College, and that I will communicate their offer to the Lord Bishop,

"Such laudable and generous conduct will be made known in England, and cannot fail of insuring the commendation of all good men; and the Queen will rejoice in seeing her Maori subjects setting go good an example to the Europeans.

"When they wish, I will send out a surveyor that they may indicate the quantity and boundaries of the land they wish to transfer to the Bishop, that a plan may be made, and the arrangement completed.

"E. Eyre,

Lieut.-Governor.

Two years later a grant from the Crown was issued to the Lord Bishop of New Zealand, It recited:—

"Whereas a school is about to be established at Porirua under the superintendence of the Right Reverend George Augustus, Lord Bishop of New Zealand, for the education of children of our subjects of all races, and of children of other poor and destitute persons, being inhabitants of Islands in the Pacific Ocean. And whereas it would promote the objects of the said institution to set apart a certain piece or parcel of land in the neighbourhood thereof for the use and towards the maintenance and support of the same, which piece or parcel of land has by a Deed from the Natives been ceded for the support of the same school," and expressed the Trust as follows:—

"To hold unto the said George Augustus, Lord Bishop of New Zealand, and his successors, in trust nevertheless to and for the use and towards the maintenance of the said school, so long as religious education, industrial training, and instruction in the English language shall be given to the youth educated therein or maintained thereat."

It is plain that the land thus made over to Bishop Selwyn was intended to be a site, and to serve as an endowment, for a school or college to be used primarily by English and Maoris, but also by Her Majesty's subjects of all races, and by poor inhabitants of islands in the Pacific which did not belong to the Crown; that it was to be under the control of the Bishops of the Church of England in this Colony, and that emphasis was laid on religious teaching.

Bishop Selwyn on the 24th August, 1859, in pursuance of "The Bishop of New Zealand's Trust Act, 1858," transferred page 5 the Trust to the General Synod "of the Church of the Province of New Zealand, commonly called the Church of England," which has since that time appointed Trustees and required reports from them.

Attempts were made to raise funds to erect and maintain the College, but failed. The Bishop himself contributed £200 which was expended on clearing the land and carrying a fence from the harbour to the sea coast. But the College was never built. The land was leased but the rental was small. From 1853 to 1865 it did not amount to more than £50; until 1882 it was £75; until 1889, £100; until 1896, £150; it is now £200.

From 1865 to 1874 grants were made from the accumulated rents for the education of Maori boys and girls at an Industrial School at Otaki, distant forty miles from Witireia. With this exception, the whole of the rents before and after that period have been invested. The amount which has thus accumulated was on the 30th June, 1897, £6,480 18s. 4d.

The Trustees have carefully husbanded the fund in the hope that a time might come when it would be possible for them to fulfil the Trust in spirit if not in letter. Witireia has now become an obviously unsuitable place for a school. It is near no Settlement whence supplies could be obtained for a boarding school, and there are too few persons inhabiting the district to make it advisable to build a day school. The Ngatitoa tribe has dwindled, if it has not entirely disappeared; twenty years ago it numbered less than forty persons, who were scattered over the North Island.

In 1895 the Trustees sought advice. Was it absolutely necessary according to the terms of the Trust, that the College should be built at Witireia? When this question was answered in the affirmative, it was decided to ask for direction from the General Synod at its next session in February, 1898. The Synod considered the matter very carefully. They held that £6,000 of capital together with the annual rental was a small sum where-with to erect and maintain a College. Further, it seemed to them that although the Crown Grant recites that children "of all races" were to be benefitted by the Trust, yet inasmuch as the income has been derived from a gift of the Maoris, it was fair that the children of that race should receive the advantages. The Synod accordingly directed that application should be made at once to the Supreme Court for power to expend the net rents and profits arising from the said Trust, and the net income of page 6 the fund, representing accumulated rentals and interest in the following manner, viz:—

"In the provision of exhibitions, enabling the children of parents residing in the provincial District of Wellington to be educated free of cost, at such schools of, or belonging to the Church of England, and situate in any part of New Zealand, as the Trustees shall select,

"Provided—
"1st.—That such children shall receive religious education, industrial training, and instruction in the English language.
"2nd.—That in awarding such exhibitions, preference shall always be given to Maori applicants.
"3rd.—That Maori children who are unable to receive primary education shall not be debarred from the benefit of the exhibitions.
"4th.—That scholars attending Government schools, whether for Europeans or Maoris, shall not become qualified to obtain exhibitions until they have passed the fourth standard.
"5th.—That the General Synod shall have power to make Rules and Regulations, not inconsistent with any foregoing portion of this Resolution, under, and subject to which the exhibitions shall be awarded,"

In July, 1898, the Trustees petitioned the Supreme Court that the Trusts might be varied in the manner above mentioned and the application was opposed by the Government on the ground that it was their intention to introduce legislation dealing with all Maori School Reserves. The hearing was then adjourned and nothing further was done until after the Session then commencing.

On the 25th November, 1898, as the Session had not been availed of by the Government, the Trustees commenced proceedings by writ in the Supreme Court, making the Solicitor-General Defendant, The above was the scheme submitted by the Trustees for adoption by the Supreme Court. The Solicitor- page 7 General, on behalf of the Government, filed a counter-scheme as follows:—

II.—Scheme Filed by Solicitor-General.

1.
(i).The said land, and the rents, issues, and profits thereof shall be held and administered by Trustees appointed by the General Synod in trust to provide instruction and industrial training for members of the Maori race in manner hereinafter provided.
(ii).The Trustees in office, being the plaintiffs, shall continue in office until the appointment of their successor by the General Synod.
2.Of the accumulated rents, issues and profits now in the hands of the Trustees, five thousand pounds shall be deemed to be capital and shall be invested upon such securities as, with the approval of the General Synod, the Trustees think fit.
3.The residue of the said accumulated rents issues and profits amounting to one thousand four hundred and eighty pounds or thereabouts as also the future rents issues and profits arising from the said land and from the investments of the said capital shall be deemed to be income.
4.The Trustees shall out of the net income available after payment of all proper expenses connected with the administration of the trust property establish equip and maintain a school at Otaki or at such other suitable place within the Provincial District of Wellington as is selected by the General Synod and approved of by the Governor in Council in which school industrial training shall form an especial feature of the education therein.
5.The school shall be maintained for the instruction and industrial training of members of the Maori race (including their half-caste descendants.
6.The cost of establishing and equipping the school shall not exceed one thousand pounds and the annual cost of its maintenance shall not exceed four hundred pounds.
7.The residue of the net income shall be applied in granting scholarships for the purpose of enabling Maori students from the school to attend classes in science at the Victoria College or such page 8 other institution providing the higher industrial training, as, with the approval of the Governor in Council, the General Synod appoints.
8.The value, tenure, terms and conditions of the scholarships shall be such are fixed by regulations to be made by the General Synod.
9.No religious test shall be imposed in respect of either the teachers or pupils or of the persons obtaining scholarships and in every case a preference shall as far as practicable be given to members of the Ngatitoa Tribe (being the original donors of the said land) and to Maoris resident within the Provincial District of Wellington.
10.If the school is not duly established and equipped before the first day of June one thousand nine hundred the Trustees shall thereafter and until it is duly established and equipped pay over to the Education Board of the Wellington District out of net income sums at the rate of four hundred pounds per year by equal quarterly instalments, and the said Board shall apply the same in providing instruction and industrial training for Maoris in such manner as it thinks fit.
11.The Government Audit office shall be the auditor of the Trustees and shall have the same powers and duties in respect of the moneys and accounts of the Trustees, and of every person dealing therewith, as if the Trustees were a local authority within the meaning of section six of "The Public Revenues Act, 1892."
12.Within twenty-one days after the close of each financial year ending the thirty-first day of March, the Trustees shall cause to be prepared and submitted to the said Audit office a statement of accounts showing:—
(i.)The total receipts and disbursements for the year; and also
(ii.)Such other particulars as are from time to time prescribed by regulations as herein provided.
13.Such statement shall be audited by the said Audit office within twenty-one days after receipt thereof, and shall, together with the certificate of the Audit office and a general report of the position of the trust property and the work of the school, be forwarded by the Trustees to the Native Minister within sixty days after the close of such year, to be by him laid before both page 9 Houses of the General Assembly if Parliament is sitting, or if not, then within ten days after the commencement of the next session thereof.
14.The Trustees shall also cause a copy of such statement certificate aud report to be submitted to the then next ensuing meeting of the General Synod.
15.The General Synod may from time to time make regulations for any of the following purposes:—
(i.)The appointment of Trustees, their term of office, and the events on the happening of which they shall cease to hold office;
(ii.)The powers, duties, and functions of the Trustees;
(iii.)Any other purpose for which regulations are contemplated or required by this Scheme.

Provided that they shall not come into operation unless and until they have been approved by the Governor-in-Council.

The case in due course came on for argument (Mr. Quick and Mr. Tolhurst on behalf of the Trustees, and Sir Robert Stout and Mr, Gully on behalf of Defendant the Solicitor-General) the Judge being Sir James Prendergast, the late Chief Justice.

On the 19th May, 1899, judgment was delivered by which it will be seen that neither scheme was adopted but important law points were disposed of, and leave was reserved to the Plaintiffs to apply again.

The following is a copy of the judgment. The italics of course are not in the original.

III—Judgment.

This is an action brought by the Plaintiffs alleging themselves to be the present Trustees of 500 acres of land at Porirua, granted by the Crown in 1850 to the Bishop of New Zealand and his page 10 successors in trust for the use and maintenance of a School mentioned in the recital to the Grant so long as religious education, industrial training and instruction in the English language shall be given to the youth "educated therein or maintained thereat." The Grant recites that a school is about to be established at Porirua under the superintendence of the Right Reverend George Augustus, Lord Bishop of New Zealand, for the education of children of subjects of the Queen of all races and of children of other poor and destitute persons inhabitants of Islands in the Pacific Ocean. It also recites that it would promote the objects of the said institution to set apart a certain piece of land in the neighbourhood thereof (that is of the intended school) for the use and towards the maintenance and support of the same and that the land had by deed from the Natives been coded for the support of the said school.

It appears doubtful whether a school answering at all to the proposed school as described in the recital to the Grant was ever established. It would appear that many years ago a schoolmaster was placed at Porirua for the Natives by the Bishop but was not long maintained there, the reason being that the attendance of Maori children was irregular and the number small. Whether this was before the grant or after does not appear. At any rate for very many years the land has been let at a rent—the accumulation of rents received and invested amounts to £6,480. The Plaintiffs allege that the accumulated fund and the 500 acres of land let at £200 a year are insufficient to establish and carry on such a school as is contemplated by the trusts in the Grant: but that the principal obstacle to the proper maintenance of such a school is the small number of Maori children residing in the neighbourhood.

The Trustees therefore desire to obtain from this Court its sanction to a modification of the trusts and to that end ask that a scheme they propose be adopted; the principal feature of that scheme is that instead of a school being established and maintained either at Porirua or elsewhere the accumulated funds and the rents in the future be applied in granting Exhibitions to Maoris and others to be held at one or other of several existing schools connected with the Church of England and in which there is, as alleged, some technical instruction and instruction in English.

The Solicitor-General is made defendant to this action.

In the defence filed in his name he contends that the endowment reverts to the Crown.

page 11

At the argument Counsel for the Solicitor-General applied to amend the defence by raising the question as to the validity of the Grant. I refused the application; it was contended, however, that without the amendment the question was raised in the case. I thought It was not and so decided. It is true that no Statute or Ordinance or provision in any Governor's instructions could be mentioned authorising the Grant, but it seemed to me that such a question could not be raised in a defence to a suit notwithstanding that the Solicitor-General was the Defendant.

As to the question of reverter to the Crown the terms of the grant do certainly raise a considerable doubt whether a general intention of charity is shown so as that the doctrine of my Pres could be applied if there was a failure of the particular object. It is to be observed that the terms of the grant are that the gift is for the use &c. of the school "so long as "religious education etc. shall be given to the youth educated and maintained thereat. The Grant is not in terms for the use etc. of a school or the specified school at which religious education shall be given: and the question is whether either because the specified school never did comply with the requirements of the gift or if it ever did that it has long ceased to exist at all, and therefore the gift has reverted to the Crown, the real donor. In Attorney-General v. Pyle 1 Atk 435 the case was that A devized a freehold messuage at a place to the Charity School there and directed the rents and profits to be applied for the benefit of the said school "so long as it shall continue to be endowed with charity" and the Lord Chancellor Hardwicke observed that "where a sum of money is given to a charity so long as it shall continue to be endowed with charity, it is only given quousque and when it ceases, if it is a gift of real estate it shall fall into the inheritance for the benefit of the heir, if personal into the residuum," 1 do not think however that the true construction of the Grant is that if the particular charity—a school at Porirua was not established, but a school was established somewhere else in the same District, and in all other respects carrying out the objects of the charity that the gift would fail and the land revert. I think that it may be inferred that the general object was charitable—a school for the religious education and industrial training of children of youth especially of youth of the Maorirrce If therefore it hud been made to appear that a school of the description found in the Grant could not reasonably in the altered circumstances of the Colony and the Maori people be established I should have concluded that a case had been made out for the application of the doctrine of Cy-Pres and that a scheme should be adopted for the future. Upon the evidence at present adduced I am not satisfied that a school corresponding with the description found in the page 12 Grant cannot now be established and carried on with advantage to the community. It seems to me clear that the Trustees are right in their objection to the scheme proposed by the Solicitor-General. An object (I am inclined to think the principal object) undoubtedly was that there should be" religious "education, and that as the Bishop of the Church of England was the Trustee, the intention was that the religious education should at any rate be of such a character as he could approve of. I do not at all infer that the School was intended to be confined to persons professing to be members of the Church of England. If in the end it should appear that there has been such a change in circumstances that the Court finds it permissible to adopt a scheme authorising some change in the mode of carrying out the intention such scheme might provide with regard to the religious instruction to he given. I cannot however doubt that the intention was to endow a Church of England School; but nevertheless a school open to others: this was effected in the scheme approved of in A.G. v. Clifton 32 Beavan 596 a case cited by Sir R. Stout, and in many other cases. I understand but do not approve of the leading idea of the scheme produced by the plaintiffs—the Trustees, The notion is that primary education is sufficiently provided for by the State and that it would not be a wise application of the funds of the charity to apply them in providing for teaching what is as efficiently taught at the common schools; but I do not think that it would be a proper appiication of the funds of the charity to expend them in the maintenance of youths at a Church of England Grammar School though there might be some slight instruction in some mechanical art there obtainable. I think that what is necessary is a training school for children of both sexes of the poorer class—of such children who have progressed to some substantial extent at the common schools or their equivalent, and are then prepared to take full advantage of some industrial training either, for instance, in farming operations or farming and some other art or arts. To carry out this idea the charity would have to be to some extent modified, for it would not be necessary to make instruction in English a principal feature.

At any rate I am not satisfied that with an endowment equal to ten thousand pounds a very useful school cannot be established and maintained in this District capable of training a sufficient number of young people in some industrial art, sufficient in number to make the school economically a wise application of the funds.

I therefore decline to adopt either of the schemes proposed and reserve the matter for further consideration if then it is made page 13 manifest more certainly than I think it has at present that the idea of a school at Porirua should be abandoned and that some modification of the charity is necessary then a new scheme can be proposed and dealt with.

The next step taken by the Trustee was to file a fresh scheme.

There are two Reserves held by Trustees on the same Trusts as the Porirua Reserve, excepting that they are for the benefit of a College to be erected in the Wairarapa Valley. The law points decided by Sir James Prendergast, C.J., equally apply to the Crown Grants of these two Reserves. Moneys had also been accumulated from rents and investments appertaining to them, but (as in the Porirua case) not sufficient to permit of the Trustees erecting a College and maintaining students, They have however purchased a farm of 120 acres with buildings suitable for such a College or school as is contemplated by the above judgment.

The Plaintiffs (some of whom are Trustees common to both sets of Trusts) considered that if they could strengthen their evidence and convince the Court of the impossibility of carrying out their Trusts at Porirua a scheme which provided for the appropriation of the revenues to maintaining scholars at the Wairarapa institution would be as nearly as possible in accord with the Trusts of the different Grants.

The Trustees of the Wairarapa Reserves gave their consent and the Plaintiffs filed the following amended scheme.

IV.—Amended Scheme for the Application of Rents

Accruing from a piece of land, comprised in a Crown grant dated the 28th day of December, 1830, to George Augustus Bishop of New Zealand of a piece of land granted for the endowment of a School at Porirua and also for the application of the interest accruing from the investment of such rents.

That the Trustees of the said land be empowered to expend the net rent and profits arising from the said land and the net page 14 income of the fund representing accumulated rentals and interest in the following manner:—
1.To assist in the maintenance of an Institution about to be erected in the Wairarapa Valley by Trustees consisting of the said Frederic Wallis, Thomas Fancourt, Edward William Lowe, John Elisha Smith, William Henry Quick and George Edmeades Tolhurst, in whom are vested certain lands in the Wairarapa District, originally granted to the Right Reverend George Augustus Lord Bishop of New Zealand by two Crown Grants, bearing date respectively the 14th day of June, 1853, which lands were granted for the purpose of the use maintenance and support of a College to be established in the Wairarapa Valley "so long as Religious Education, Industrial Training and Instruction in the English Language should be given to the youth educated therein or maintained thereat, being subjects of Her Most Gracious Majesty the Queen of all races and of children of other poor and destitute persons being inhabitants of Islands in the Pacific Ocean" (provided such Institutions be conducted in accordance with the Trusts of the said Grants and that youths of the Maori Race be preferred for admission thereat
2.That the General Synod of the Church of the Province of New Zealand commonly called the Church of England, or by its consent the Diocesan Synod of the Diocese of Wellington or its Standing Committee, shall have power to make rules and regulations not inconsistent with the foregoing portion of this scheme under and subject to which the same shall be carried out.

This scheme was submitted to the Court and Counsel were heard by Sir Robert Stout C.J. and Mr. Justice Edwards. As before the Government opposed but on this occasion did not produce an alternative scheme.

The result of the application will be gleaned from the following judgment:—

Wallis and Others V. the Solicitor-General. Hearing Judgment Mr. Quick for the Plaintiffs. Mr. Gully for the Solicitor-General.

In this case the Plaintiffs have since the matter was before the Court, on 19th May, 1899, submitted a fresh scheme to the page 15 Court differing in some respects from the scheme that was filed on the 25th November, 1898.

In the amended scheme they ask that the Trustees be empowered to expend the net rent and profits arising from the land and the net income of the Fund representing accumulated rentals and interest in the assisting in the maintenance of an Institute about to be erected in the Wairarapa Valley. This new institution is to be for the religious education and industrial training and instruction in the English language of youths being subjects of Her Majesty, youths of the Maori race being preferred. The General Synod of the Church of the Province of New Zealand commonly called the Church of England or by its consent the Diocesan Synod of the Diocese of Wellington or its Standing Committee is to have power to make rules and regulations to carry out the scheme.

The objections that were urged by the Counsel for the Solicitor-General were the same as those urged before the Court last year and on which a decision was given on the 19th of May, 1899.

This Court is bound by its previous decision and what has now to be considered is (1) Whether it has been shown that the Trust can be carried out in its entirety and (2) If not whether the scheme submitted should be approved.

The evidence is conclusive that it would be a waste of the Trust moneys to erect a school on the Reserve and if such a school were started there it would fail to fulfil the purposes of the Trust.

The scheme proposed seems to us to go beyond what is necessary in utilising the Trust, It practically proposes to absorb the Trust Moneys for the support of a similar institution in the Wairarapa. The Trust may be carried out without allowing the absorption,

If the scheme were amended so as to provide:—
(a.)For the maintenance of such a number of scholars in the Wairarapa Institution as the rentals and income would permit—a fair sum being charged for maintenance and education.
(b.)That preference should be given to children belonging to the Ngatitoa tribe, failing them preference to children of the West Coast tribes.page 16
(c.)That the proposed system of education be approved, as appears in the original Trust.
(d.)That no youth be refused a scholarship on the ground of religious belief—no religious test whatever being applied to the the applicants the Court would be prepared to approve of it.

It was urged by Counsel for the Solicitor-General that the Government intended to introduce into Parliament a measure dealing with this and similar Trusts. The Court is aware that there are several Trusts similar to this one and held by various Church organisations. The approval of such a scheme as is here suggested cannot in any way hamper either the Government or the Parliament in dealing with this Trustor the Trusts referred to.

The costs of these proceedings if a scheme such as has been suggested is carried out will be paid out of the income of the Trust.

This Judgment has been approved of by the Plaintiffs who are prepared to act upon it.

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