Royal College of Surgeons of England v National Provincial Bank Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Normand,Lord Morton of Henryton,Lord Reid,Lord Tucker,Lord Cohen |
| Judgment Date | 03 April 1952 |
| Judgment citation (vLex) | [1952] UKHL J0403-1 |
| Date | 03 April 1952 |
| Court | House of Lords |
[1952] UKHL J0403-1
House of Lords
Lord Normand
Lord Morton of Henryton
Lord Reid
Lord Tucker
Lord Cohen
Upon Report from the Appellate Committee, to whom was referred the Cause Royal College of Surgeons of England against National Provincial Bank Limited and others, that the Committee had heard Counsel, as well on Wednesday the 20th, as on Thursday the 21st, Tuesday the 26th, Wednesday the 27th and Thursday the 28th days of February last, upon the Petition and Appeal of the Royal College of Surgeons of England, of Lincoln's Inn Fields, in the County of London, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 2d of February 1951, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of The Council of the Middlesex Hospital Medical School, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of His late Majesty's Court of Appeal, of the 2d day of February 1951, in part complained of in the said Appeal, be, and the same is hereby, Reversed except as to Costs: And it is hereby Declared, That the proviso contained in Clause 11 of the Will of the Testatrix is valid and has come into operation, and that on the 5th day of July 1948 the endowment fund referred to in Clause 10 of the said Will became transferable to the Royal College of Surgeons of England for the general purposes of the College: And it is further Ordered, That the Costs of the said Appeal to this House be taxed as between Solicitor and Client and paid out of the corpus of the said endowment fund, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had the advantage of reading the opinion about to be delivered by my noble and learned friend, Lord Morton of Henryton. and I agree with it. I propose, therefore, only to discuss the single question upon which there is a difference of opinion among your Lordships who heard the appeal, the question whether the Royal College is in law a charity. The question as it is now presented was not, as has been explained by my noble and learned friend, Lord Morton of Henryton, before the Court of Appeal when it decided that the Royal College was not entitled to exemption from the duty imposed by section 11 of the Customs and Inland Revenue Act. 1885 ( The Royal College of Surgeons of England v. The Commissioners of Inland Revenue (1899) 1 Q.B. 871).
The decision in this case depends primarily on the construction of the constituent documents of the College, and particularly the Charter granted by King George III in 1800, for it is to these documents that we naturally look in order to discover what are the objects for which the College was instituted. The peculiarity of the Charter of 1800 is that the objects are nowhere set out or described eo nomine. The operative part of this document confers powers and imposes duties and provides for the appointment of officers of the College and generally for the carrying on of the College as a body independent of the Corporation of the City of London. But it nowhere states, or even refers to, the objects which the College exists to fulfil. In one of the recitals, however, it is said:
"It appears to us that the establishment of a College of Surgeons will be expedient for the due promotion and encouragement of the Study and Practice of the said Art and Science"
of surgery. These words give the reasons moving the Crown to grant the Charter, and if there were elsewhere in the document a statement of the objects of the College incorporated by the Charter, it would prevail over the recital. But in the absence of any other clarification of the objects, the Crown's motive for making the grant may legitimately be regarded as coinciding with the objects of the College which the Charter incorporated. That appears at least to be a more satisfactory way of arriving at a definition of the objects than by attempting to infer the objects from the powers, duties and machinery created to enable the College to carry them out. I am. therefore, prepared to hold that the objects are to be found in the recital which I have quoted.
If that be so, the next step is to construe that recital. The words "the study and practice of the art and science" of surgery do not, in my opinion, mean "the academic study and professional practice of the art and science of surgery"; they signify rather the acquisition of knowledge and skill in surgery both by abstract study and by the exercise of the art in the dissecting room and the anatomy theatre, and they are capable of covering both the discovery of new knowledge which is the fruit of research, and the learning of existing knowledge either by students who are qualifying or by qualified surgeons desirous of improving their knowledge and skill. On that construction the professed objects of the College all fall into the categories of the advancement of science or of the advancement of education, and are charitable.
Nothing in the later part of the Charter or the later Charters induces me to modify that construction. A clause is inserted to exclude the jurisdiction of the Corporation of the City of London. The reason for that is that the Corporation of Surgeons which had been created by Act of Parliament in the reign of George II. and which had been dissolved for some time before 1800, was a trade guild subject to the civic jurisdiction, and in 1800 it was intended that the new College should have an independent and a higher status. If the present Royal College were a successor of a trade guild carrying on the objects of such a guild. I doubt whether it could make good its claim to be a charity. But the clauses of the Charter are not so conceived as to reconstitute the dissolved trade guild. They leave no doubt that a new and different body was being established, though there are provisions vesting in the new body the gifts, grants, liberties, privileges, immunities and possessions of the old body and giving its officers the same powers to transact business as were possessed by the officers of the old body. All of these provisions are, I think, to be interpreted as machinery provisions subserving the ends or objects of the new College as defined by the recital.
There is also a power to make byelaws for the regulation, government and advantage of the College. It was said that this power had been used in order to further the professional interests of the members of the college. I shall assume that such a use, even if it were a misuse of the power, would be evidence upon which it would be proper to hold that the College was not, or was no longer, a charity. By Byelaw XV the Council of the College undertakes at all times to "protect and defend every fellow, fellow in dental surgery, member and licentiate in dental surgery of the College in the exercise and enjoyment of the rights and privileges acquired by him as a diplomate of the College". Byelaw XVI gives the College power to discipline members adjudged guilty of professional misconduct or convicted of a crime, in my opinion, these byelaws are in the strictest sense byelaws for the regulation, government and advantage of the College. The professional advantage which might accrue to individuals from the protection promised them in the exercise and enjoyment of the rights and privileges acquired by them as diplomates of the College, is but the inevitable and incidental result of a provision intended to secure the dignity and honour of the College to which they owe their diploma. So, also, the disciplinary power is a power necessary for the success and good name of the College, and only incidentally advantageous to the individual diplomates. To hold that these byelaws negative the claim of the College to be a charitable institution would be inconsistent with the decision in Institution of Civil Engineers case [1932] 1 K.B. 149, for the rights and privileges of members of the Institution and its powers of discipline over them seem to me to be entirely comparable to the corresponding rights, privileges and powers in this case.
I therefore concur with my noble and learned friend in the motions which he will propose.
My Lords,
The Appellant, The Royal College of Surgeons of England (hereafter referred to as "the College") claims that on the 5th July, 1948, it became absolutely entitled to the "endowment fund" created by the Will of the Testatrix. Lady Bland-Sutton. This claim is resisted by the second Respondent, hereafter referred to as "the Medical School".
The Testatrix made her Will on the 13th January, 1943, and died on the 10th February, 1943. The only relevant clauses of her Will are Clauses 2, 10 and 11. By Clause 2 the Testatrix appointed National Provincial Bank Limited (the first Respondent to this Appeal) to be the executor and trustee of her Will. By Clause 10 the Testatrix gave all the residue of her real and personal estate to the bank upon the usual trusts for sale and conversion and directed the bank to hold the net proceeds of such sale and...
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