M'Gregor v Cox
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1898 |
| Date | 20 July 1898 |
| Docket Number | No. 193. |
| Court | Court of Session |
Ld. Stormonth-Darling, Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
College—University—Privy Council—Ordinance—Procedure—Ex facie valid University Court—Universities (Scotland) Act, 1889 (52 and 53 Vict. cap. 55), secs. 5, 16, 19, 20.—
The Universities (Scotland) Act, 1889, sec. 5, contains provisions with respect to the constitution of the University Courts of the four Scottish Universities, and, subsec. 4, enacts that ‘the University Courts as hereby constituted’ shall be in place of those constituted by the Universities (Scotland) Act, 1858, ‘but every Court constituted by’ that Act ‘shall continue in office until such time as the new University Court under this Act shall have been declared to have been duly constituted, and shall, while so continuing in office, exercise the powers conferred on University Courts by the Universities (Scotland) Act, 1858, but shall not exercise any of the additional powers conferred on University Courts by this Act, except that of consenting to the affiliation of a new College.’
Sec. 16 empowers the Commissioners appointed under the Act to affiliate the University College, Dundee, to, and make it form part of, the University of St Andrews, ‘with the consent of the University Court of St Andrews, and also of the said College.’
Sec. 19 enacts, with respect to ordinances, which the Commissioners were empowered to make for the carrying into effect the purposes of the Act, that when the Commissioners have prepared any draft ordinance they shall cause a printed copy to be sent, inter alios, to ‘the University Court’ of each University to which such ordinance relates, and shall receive and consider any objections to such ordinance received by them from, inter alios, ‘the University Court.’
Sec. 20 enacts that all the ordinances made by the Commissioners shall be published in the Edinburgh Gazette, and shall be laid before both Houses of Parliament, and also that it shall be lawful for, inter alios, the University Court of any University to petition Her Majesty in Council to withhold Her approbation of the whole or any part of such ordinance, ‘and it shall be lawful for Her Majesty by Order in Council either to declare Her approbation of any such ordinance in whole or in part, or to signify Her disapproval thereof in whole or in part …and no such ordinance shall be effectual until it shall have been so published, laid before Parliament, and approved by Her Majesty in Council.’
On 21st March 1890 the Commissioners issued an ‘order,’ which bore to proceed under section 16 of the Act, and to affiliate the University College, Dundee, to, and to make it part of, the University of St Andrews, subject to the conditions of an agreement between the University Court of the University of St Andrews (being the University Court constituted by the Act of 1858) and the University College, Dundee, which agreement was set forth in a schedule appended to the order. This order was treated by the Commissioners as coming into operation at once, and the provisions of sections 19 and 20 of the Act with respect to ordinances were not followed with respect to it.
On 10th April 1890 the Commissioners issued a further order bearing to be under section 5 of the Act, and declaring the new University Court of St Andrews University to be duly constituted under the Act. Thereafter the old University Court of St Andrews ceased to perform any functions.
On 4th June 1895, in an action at the instance of members of the University of St Andrews, these orders were reduced on the ground that the
procedure required by sections 19 and 20 of the Act had not been followed with respect to the order of 21st March 1890.
On 8th October 1895 the Commissioners issued an order of new declaring the University Court of St Andrews to have been duly constituted.
Thereafter, on 15th January 1897, Her Majesty in Council signified Her approval of an ordinance made by the Commissioners by which the University College, Dundee, was affiliated to, and made to form part of, the University of St Andrews, on the conditions of the agreement between the old University Court of St Andrews and the University College, Dundee (which was embodied in the ordinance), with the exception of one clause of that agreement, which was deleted on the petition of the University Court of St Andrews, and with the consent of University College, Dundee. This ordinance had been issued by the Commissioners on 3d February 1894, a few weeks before the raising of the action of reduction, and after the question of the validity of the orders subsequently reduced had been mooted.
In March 1897 certain members of the University of St Andrews brought an action against, inter alios, the Council of University College, Dundee (who alone appeared to defend), concluding for reduction of the ordinance approved on 15th January 1897, on the grounds (1) that the consent given by the University Court of St Andrews to the agreement for affiliation was a consent to an affiliation by way of ‘order’ in the manner originally adopted by the Commissioners, and not a consent to affiliation by way of ordinance; (2) that the consent required by section 16 of the Act was the consent of the University Court in existence at the time that the affiliation was being effected, and consequently that the consent of the old University Court was ineffectual as a basis for affiliation, as that Court had ceased to exist; (3) that the ordinance under reduction was ineffectual in respect that it had never been submitted to a properly constituted University Court in terms of section 19 of the Act, the constitution of the Court to which it had been submitted having subsequently been set aside by the reduction of the order of 10th April 1890; and (4) that it was ultra vires of the Queen in Council exercising the powers conferred by the Act to modify in any way the terms of the agreement between the University Court of St Andrews University and University College, Dundee.
Lord Stormonth-Darling, Ordinary, assoilzied the defenders, holding (1) that the consent must be taken to be a consent to affiliation in the manner provided by the Act,—that was to say, by ordinance; (2) that the consent given by the old University Court did not cease to be effectual as a basis for affiliation because that Court had ceased to exist; (3) that it was sufficient compliance with section 16 of the Act that the ordinance was submitted to what was held and reputed to be the University Court at the time; and (4) that under the Act Her Majesty in Council was entitled to make the alterations which had been made.
On a reclaiming note, the Court adhered.
This was an action for reduction of certain ordinances made by the Commissioners acting under the Universities (Scotland) Act, 1889 (52 and 53 Vict. cap. 55),* and approved by Her Majesty in Council. By one of these ordinances—Ordinance No. 46—St Andrews No. 5—the University College, Dundee, was affiliated to, and made to form part of, the University of St Andrews; the other ordinances under reduction made arrangements with respect to the University of St Andrews, on the footing that the University College, Dundee, formed part of that University.
The present action was a sequel to the case of Metcalfe v. Cox, reported 22 R. 210; 22 R. (H. L.) 13; 23 R. 559; and 23 R. (H. L.) 60.
The litigation arose in the following circumstances:—
On 15th February 1890 the University Court of the University of St Andrews (being the University Court constituted under the Universities (Scotland) Act, 1858), by minute of meeting of that date, consented ‘to University College, Dundee, being affiliated to, and made to form part of, the University of St Andrews, on the terms, and subject to the provisions and declarations’ set forth in an agreement, entitled ‘Agreement for the Union of University College, Dundee, with the University of St Andrews, under and in terms of section 16 of the Universities (Scotland) Act, 1889.’ The terms of this agreement, in so far as here material, are set forth infra, p. 1220.
The agreement was, on the same day, signed by four members of the University Court of St Andrews on behalf of that Court, and by three members of the Council of University College, Dundee, on behalf of the Council.
On 4th March 1890 the secretary of the Scottish Universities Commission wrote to Principal Donaldson of St Andrews suggesting certain alterations on the agreement. A copy of this letter was returned to the Commissioners, with the following docquet written on it, and signed by Principal Donaldson and four others of the six members of the University Court:—‘We agree to the alterations proposed by the Commissioners in the foregoing letter.’ A similar letter was sent to the Council of University College, Dundee, which consented to some, but not to all, of the suggested alterations, and the agreement was ultimately altered to the extent consented to by the Dundee Council.
On 21st March 1890 the University Commissioners issued an ‘order’ purporting to affiliate University College, Dundee, to, and make it form part of, the University of St Andrews, in terms of section 16 of the Universities (Scotland) Act, 1889. This ‘order,’ which is quoted in full, infra, p. 1220, was regarded by the Commissioners as taking effect at once, and the procedure appointed by sections 19 and 20 of the Act, with respect to ordinances, was not followed in regard to it.
On 10th April 1890 the Commissioners issued a further order, which, on the narrative that they were empowered by section 5 of the Universities (Scotland) Act, 1889, to declare the University Courts under the Act to have been duly constituted, declared ‘That the New University Court of the University of St Andrews is duly constituted in terms of the said Act.’ Thereafter the University Court of St Andrews, acting under the Universities (Scotland) Act, 1858, ceased, as matter of fact...
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