J. C.* 1875 Jan. 27. [PRIVY COUNCIL.] IN THE MATTER OF THE ENDOWED SCHOOLS ACT, 1869; AND IN THE MATTER OF A SCHEME FOR THE MANAGEMENT OF Endowed Schools Act, 1869, ss. 13, 39-Vested Interest of Petitioner Compensation. The Appellant, as Master of Alleyn's College of God's Gift, at Dulwick, held an office created and defined, both as to its value and duties, by 20 & 21 Vict. c. 84. The Act provided for his dismissal from office by a certain majority at a meeting constituted and convened in a particular manner, of the governors of the college; no such meeting ever having at the date of appeal been convened, and no such majority having at that date ever had existence. In a petition presented under sect. 39 of the Endowed Schools Act, 1869: Held, that the Appellant had a vested interest in his office and the emoluments thereof within the meaning of the 13th section of the Endowed Schools Act, 1869, which interest must, under the said section, in any scheme by the Charity Commissioners relating to the college, be saved or duly compensated for. As it appeared that such interest had neither been saved nor duly compensated for, it was ordered that the scheme should be remitted to the Commissioners, with costs to be paid out of the funds of the endowment. THIS was an appeal by the Rev. Alfred James Carver, master of the above-named college, against a scheme framed by the Endowed' Schools Commissioners for the management of the college and endowments, which was approved by the Committee of Council on Education on the 7th of May, 1875. Down to the date of the appeal the charity had been regulated by the scheme set out in the schedule to 20 & 21 Vict. c. 84; by sect. 3 of which the management of the charity and estates was vested in governors. That scheme also provided that three-fourths of the funds of the college should * Present:-LORD SELBORNE, SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERT P. COLLIER. be devoted to educational, and one-fourth to eleemosynary purposes (see sect. 42); that an upper school and lower school should be founded and maintained out of the funds of the college in the hamlet of Dulwich (see sect. 45); and that there should be a head master and an under master of the upper school, the former to be styled the "Master of Alleyn's College of God's Gift, at Dulwich," and to be remunerated as next hereinafter stated. Sects. 49 and 60 of the scheme fixed the remuneration of the master of the college. The former provided that he was to receive a fixed annual salary of £400 out of the income of the educational branch of the charity, and also, in addition to such fixed salary, a half-yearly payment of £1 10s. for every boy exceeding the number of fifty who should have bona fide attended the school for a period of not less than three calendar months during the then preceding half year. The latter section provided that one moiety of the annual capitation fees should be paid half-yearly to the master of the college, in augmentation of his stipend. Sect. 88 of the scheme contained a form of declaration to be signed by the master of the college and other masters previously to entering office under the provisions of the scheme, containing the following passage:-" And that in case I shall be removed from my office by the governors according to the provisions of the same scheme, I will acquiesce in such removal, and will thereupon relinquish all claim to such office and its future emoluments, and upon any such removal or upon any avoidance of my office, possession of my official residence with its appurtenances may be forthwith taken by the governors or any person appointed by them to take possession of the same." Sects. 89 and 90 of the same scheme related to the removal of masters, and were in the following terms: "89. The master of the college, and the under master of the upper school, and the master of the lower school respectively, shall be liable to be removed from their respective offices by the resolution of the governors present at a special meeting to be called for the express purpose of considering the expediency of such removal upon a requisition of at least three governors, provided that the resolution for such removal shall be carried at such meeting by at least two-thirds of the governors present, and that J. C. 1875 In re ALLEYN'S COLLEGE, DULWICH. J. C. 1875 w In re the number of the governors voting for the removal shall not be less than seven, and provided that the notice of meeting shall in this special case have been given to every governor by the space ALLEY'S of at least one calendar month previously to the holding thereof, and that notice thereof shall have been also given in like manner by the same space previously to the master whose removal shall be proposed, and that such resolution shall be entered on the minutes and signed by the governors voting for the same. COLLEGE, DULWICH. "90. The master of the college, and the under master of the upper school, and the master of the lower school, shall also respectively be removable by the governors under the provisions of the Charitable Trusts Act, 1853, and the governors may assign to any master or under master upon his removal under this or the last foregoing clause, or upon his retirement, such a reasonable annual allowance by way of retiring pension, to be paid out of the income of the educational branch of the charity, as the Board of Charity Commissioners for England and Wales shall sanction." The Appellant was appointed to the office of master of the college in April, 1858, and had continued in his office down to the time of appeal. At the former date the only boys under instruction at the college were the twelve poor scholars of the old foundation. Early in 1860 the governors determined on building a new college, which was ultimately completed in 1870, but a heavy outlay was required for that purpose. Accordingly in 1868, the Appellant with a view, as he alleged, to aid the school in its early days, consented for a period of five years only, or for such shorter time as should be eventually agreed on between the governors and the Appellant, to compute the proportion of tuition fees due to him under sects. 49 and 60, upon the assumption of a total average fee of £7 per boy, and to surrender for such time all further interest in such fees; and to relinquish all additional emoluments whatever due to him under sects. 49 and 60 for all boys above the number of 250, in consideration of a fixed annual payment of £2 per boy. (At this time the fees were raised to £12, £15, and £18 per boy, and the number of boys to be admitted to the school, fixed in the first instance at 360, was after the completion of the new building further extended to 600.) The effect of the above temporary arrangement on the capitation fees and allowances under sects. 49 and 60, was to make the following fees receivable by the Appellant: J. C. 1875 In re For all boys up to the number of 250, a fee of £3 10s. per boy, ALLEY'S under sect. 60. For all up to 250, except the first fifty, a fee of £1 10s. per half year (i.e., £3 per annum) per boy, under sect. 49. For all exceeding 250, a total fee of £2 per boy. In 1873, the foregoing arrangement was continued by mutual consent for another year, and after that for a further additional year, making the 31st of December, 1875, the date of the absolute determination of the temporary arrangement, after which the rights of the Appellant as they originally stood under the Act of 1857 revived. The upper school at the time of appeal numbered over 550 boys who paid the capitation fees on the amended scale of 1868, and but for the arrangement above referred to, the Appellant would, under the provisions of the Act of 1857, have been in receipt of the proportion of the capitation fees and payments of the scholars, provided by sects. 49 and 60. The Appellant's income calculated according to the provisions of sects. 49 and 60, would (as he alleged) amount to about £6000, and would increase with the number of scholars. The new buildings had been completed, and were sufficient to admit of a further considerable increase in the number of scholars, and the number of scholars had been increasing from time to time. In 1872, a draft scheme was prepared by the Endowed Schools Commissioners for the management of the trust, and memorials against the same were in 1873 presented by, amongst others, a committee of residents on the estate and the Appellant. In 1874, the scheme now appealed against was prepared and issued by the Endowed Schools Commissioners, and the Appellant presented two memorials to the Committee of the Council on Education, setting out objections thereto. In addition to these memorials a remonstrance against the said scheme was sent to the Committee of Council on Education by the Dulwich Education Committee, and petitions objecting to the scheme were signed and presented by a large number of inhabitants of Dulwich. COLLEGE, DULWICH. J. C. 1875 In re COLLEGE, On the 7th of May, 1875, the scheme was approved by the Committee of Council on Education. The nature and effect of the scheme (which was very lengthy, ALLEYN'S consisting of 149 sections and a schedule), so far as is material, may be sufficiently gathered from the arguments of counsel hereinafter set forth and the judgment of their Lordships. DULWICH. The Appellant, as a person directly affected by the scheme and aggrieved thereby, petitioned Her Majesty in Council to withhold her consent to the same. Sir W. V. Harcourt, Q.C., and Mr. J. D. Bell (Mr. C. Bowen with them), for the Appellant : The title of the Appellant rests on 20 & 21 Vict. c. 84, by which the above-named charity was reconstituted and thereafter called Alleyn's College of God's Gift, at Dulwich. Sects. 47 and 49 of the schedule annexed to the Act provided for the appointment of head master with the general control and superintendence of the educational branch of the charity, subject to the superior authority of the governors, to whom he should be responsible for the conduct thereof. The effect of the new scheme was materially to affect the character and tenure of the office so established and vested in him. It dealt with the endowment as an appropriated fund placed at the disposal of the Commissioners, and treated the great school at Dulwich merely as one of a number of schools to be established under their authority, and assigned to it only a small and inadequate interest in the trust estate. Under the scheme the college would be degraded from its position as an endowed school of the highest class, while the Appellant's office would be virtually abolished while nominally retained. His authority would be restricted to Dulwich College, and that college is by the scheme carefully distinguished from Alleyn's College of God's Gift-a term which in the scheme is used in a new sense, to signify not the domus of Alleyn's foundation, but the general trust fund. The Appellant would simply be master of Dulwich College, a boys' school conducted in the new college buildings; but he would no longer be master of Alleyn's College, at Dulwich, with the general control and superintendence of the college, and especially of the educational branch, as given by 20 & 21 Vict. c. 84. In his new |