Imatges de pàgina
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(c) The Charity Commissioners: End. Schools Act, 1874, ss. 1 and 10, post.

(d) Sect. 39, sub-s. (1), post.

(e) Sects. 15 and 16, ante.

(f) Sect. 17.

(g) Sect. 18.

(h) See sect. 10 of this Act, ante.

(i) The object of the concluding clause of this section is only "to fortify the former part of the same section, and to prevent the commissioners from making particular religious opinions more or less necessary in these cases than they were before, to qualify generally for the office of governor": per Lord Selborne, in Re Hodgson's School, 3 App. Cas. at p. 866. In that case a clause in a proposed scheme providing that the rector of the parish should be an ex officio governor of a Church of England school, was held not to contravene this clause; for "no religious opinions are implied in the office of rector of the parish . . . except those which, independently of the scheme, would have been held by the Court of Chancery to be necessary to qualify for the office of governor or trustee ": ibid. at p. 866; and cf. sect. 17 of this Act, ante, and n. (a) thereto. See also, ante, p. 192.

Sect. 19 (c)-(i).

jurisdiction

20. In every scheme the Commissioners (a) may, if Transfer of they think fit, provide for the transfer to her Majesty of of visitors. all rights and powers reserved to, belonging to, claimed by, or capable of being exercised by any person, persons, or body corporate as visitor (b) of the endowed school or educational endowment to which the scheme relates, except in the case of cathedral schools (c).

They shall also provide that such rights and powers as aforesaid, if vested in her Majesty at the commencement of this Act, or if transferred to her Majesty by the scheme, shall be exercised only through and by the Charity Commissioners for England and Wales.

(a) The Charity Commissioners: End. Schools Act, 1874, sects. 1 and 10, post.

(b) With regard to visitatorial powers, see Chap. IV., ante.

(c) With regard to cathedral schools, see n. (e) to s. 14 of this Act, ante.

jurisdiction of

ordinary as

to licensing masters.

21. In every scheme the Commissioners (a) shall pro- Abolition of vide for the abolition of all jurisdiction of the ordinary relating to the licensing of masters in any endowed school, or of any jurisdiction arising from such licensing.

(a) The Charity Commissioners: End. Schools Act, 1874, sects. 1 and 10, post.

Sect. 22.

Tenure of office of teachers.

General provisions (a).

Clauses

giving commissioners visitatorial

jurisdiction.

Apportionment of

mixed en

dowments.

1

22. In every scheme the Commissioners (a) shall provide for the dismissal at pleasure of every teacher and officer in the endowed school to which the scheme relates, including the principal teacher, with or without a power of appeal in such cases and under such circumstances as to the Commissioners (u) may seem expedient.

(a) The Charity Commissioners: End. Schools Act, 1874, ss. 1, 10, post. 23. In any scheme the Commissioners (b) may insert powers and provisions that may be thought expedient for carrying its objects into effect.

all

(a) In Re Hodgson's School, 3 App. Cas. 857, it was held that the introduction into a proposed scheme of clauses establishing in the commissioners a species of visitatorial jurisdiction, sufficient to indemnify the governors and to bind the objects of the charity within certain limits, was within the powers conferred by this section. The clauses in question were as follows (1) Any question affecting the regularity or the validity of any proceeding under this scheme shall be determined conclusively by the Charity Commissioners upon such application made to them for the purpose, as they think sufficient. (2) If any doubt or question arises among the governors as to the proper construction or application of any of the provisions of this scheme, the governors shall apply to the Charity Commissioners for their opinion and advice thereon, which opinion and advice, when given, shall be binding on the governors and all persons claiming under the trust who shall be affected by the question so decided.

Under clause (1), above cited, the Court has refused to decide the question of the validity of the election of a governor where it had been already decided by the Charity Commissioners: Reg. v. Wilson, W. N. 1888, 12.

Clauses of the kind above mentioned are inserted by the Charity Commissioners both in schemes under the Endowed Schools Acts and in schemes under the Charitable Trusts Acts: see Schemes, Nos. I., II. and V. in App. II. to this Book, post.

See also generally, as to the powers intrusted to the commissioners by these Acts, Re Meyricke Fund, L. R. 7 Ch. 500.

(b) The Charity Commissioners: End. Schools Act, 1874, sects. 1 and 10, post.

24. Where part of an endowment is an educational endowment within the meaning of this Act (a), and part of it is applicable or applied to other charitable uses (b), the scheme shall be in conformity with the following provisions (except so far as the governing body of such endowment assent to the scheme departing therefrom); that is to say:

(1.) The part of the endowment or annual income

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derived therefrom which is applicable to such Sect. 24.
other charitable uses shall not be diverted by
the scheme from such uses (c);

(2.) The part of the endowment or annual income so
applicable to such other charitable uses shall be
deemed to be the proportion which, in the
opinion of the Commissioners (d), subject to
appeal to Her Majesty in Council (e), is the
average proportion which has during the three
years before the passing of this Act (ƒ) been
appropriated as regards capital or applied as
regards income to such uses, or (if that pro-
portion differs from the proportion which ought
in accordance with the express directions of the
instrument of foundation or the statutes or
regulations (g) during the said three years
governing such endowment to have been so
appropriated or applied) which ought to have
been so appropriated or applied;
(3.) If the proportion applicable to other charitable
uses exceeds one half of the whole of the
endowment, the governing body of such en-
dowment existing at the date of the scheme
shall, so far as regards its non-educational
purposes, remain unaltered by the scheme (h);
(4.) Where the governing body remains so unaltered,
that body shall pay or apply for educational
purposes such proportion as under the former
provisions of this section is applicable to those
purposes, or such less sum as may be fixed by
the Commissioners, subject to appeal to Her
Majesty in Council;

(5.) Where during the said three years any portion of
the endowment as existing at the commence-
ment of such three years, or the annual income
of such portion, has been accumulated and not
applied to any purpose, the Charity Commis-
sioners for England and Wales shall determine

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Sect. 24.

whether such portion or income is to be considered, for the purposes of this section, as having been appropriated or applied for educational purposes, or for other charitable uses; (6.) Where by reason of the Act of Parliament, letters patent, decree, scheme, order, or other instrument during the said three years governing an endowment not having during the said three years been duly carried into effect, or being merely provisional, the preceding provisions of this section are not in the opinion of the Charity Commissioners for England and Wales applicable to such endowment, the Charity Commissioners shall determine what proportions shall be considered as applicable to educational purposes, and such other charitable uses respectively.

Subject to the foregoing provisions of this section, the Commissioners shall have power by any scheme to deal with such endowment, and with the governing body thereof, in the same manner in all respects as if the whole of it were an educational endowment.

(a) See sect. 5, ante.

(b) An endowment, the whole of which was applicable "for the purposes of the education at school of boys or girls," no part of it being applicable to any "other charitable use," was held not to be brought within this section because the deed of foundation contained a direction that certain persons might continue at the school after twenty-one: Re Hodgson's School, 3 App. Cas. 857.

(c) Where a proposed scheme with reference to an endowment, partly educational, provided that all the sums previously appropriated to charities, other than educational, were to be paid to the old trustees, but did not provide for the payments to them of a sum of 1207., which had been previously received by them for management, it was held that as the property was now vested in the official trustee of charity lands, and the governors under the new scheme were alone to have the management of the property, and were to pay to the old trustees certain specific sums for specific purposes, the old provisions as to management were superseded, and the non-continuance to the old trustees of the 1207. for management was authorized: Ross v. Charity Commissioners, 7 App. Cas. 463.

(d) The Charity Commissioners: End. Schools Act, 1874, ss. 1 and 10, post.

(e) See sect. 39 of this Act, post.

(ƒ) 2nd August, 1869.

Sect. 24

(9) As to what is the "instrument of foundation," see cases cited in n. (b) (ƒ), (g), (h).

to sect. 19, ante.

(h) In a case coming within this sub-section, a scheme under these Acts cannot, except with the assent of the governing body, appoint new trustees to have the management of the charity estates or alter the mode of dealing with them: Att.-Gen v. Moises, stated in App. III. to this Book, post.

The Court will not, of course, refuse to exercise jurisdiction, because the same result might have been produced under this Act, but for the fact that the governing body refused to assent: ibid.

ment mixed

buildings,

25. Where an endowment or part of an endowment New endoworiginally given to charitable uses less than fifty years with old before the commencement of this Act (b) has, by reason &c. (a). of having been spent on school buildings or teachers residences, or playground or gardens attached to such buildings or residences, become so mixed with an old endowment given more than fifty years before the passing of this Act (b), that in the opinion of the Commissioners (c) (subject to appeal to her Majesty in Council (d)) it cannot conveniently be separated from such old endowment, then the whole endowment shall for the purposes of this Act be deemed to be an endowment originally given to charitable uses more than fifty years before the commencement of this Act.

(a) Where the endowment given less than fifty years before the commencement of the Act is in value not less than the old endowment, and was given under the belief that the old endowment was attached to some particular denomination, a scheme must provide for religious instruction being given to scholars belonging to such denomination: End. Schools Act, 1873, s. 8, post.

As to apportionment where the new endowment is not so mixed with the old, as in this section mentioned, see the next section.

By sect. 14, sub-sect. (1), of this Act, ante, schemes may not be made with regard to an endowment or part of an endowment originally given to charitable uses less than fifty years before the commencement of this Act, except with the assent of the governing body.

(b) 2nd August, 1869.

(c) The Charity Commissioners: End. Schools Act, 1874, ss. 1 and 10, post. (d) See sect. 31 of this Act, and sect. 14 of the End. Schools Act, 1873, post.

26. Where part of an endowment has been originally Apportiongiven to charitable uses more than fifty years, and

ment of old

and new en

dowments (a).

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