SUPREME COURT.

Dominion, Volume 3, Issue 664, 15 November 1909, Page 3

SUPREME COURT.

. . tenure of,teachers. DEFINITION OP 'TERMANENT EiIPLOT. : :* MENT." ■ . MARLBOROUGH TEST CASE. -' W; "W'tant judgment was'delivered by Mr. 'Tv tL °n POr U - tl,e .?"l ,reme Court ™ ' tiopal <- be, , n( s' the New Zealand Educnbo™.n.i, r / tu^/( P'{i lntl ?) / vcr S ll s the Marl- ' 11 Education-Board (defendant). Applimpntv a"? ?n da under tho Declaratory Judgth? determination of a ' -Son' Art* tl° construction of tho Educa:CW I' Wesson'was submitted to tho duration fl f' llows , i-Wh " t ttre the terms.as to : S r employment upon which the Eduar<\ )y law empowered to en- ■ tfon Rno i CrS ii nnd ; Particularly, have EducaShnr f, the right •■ or power-to appoint ' ,i ", om year to year only? uri' ir earius 011 Thursday, November 4, ' SkcrrX r r a f ! ; pear -H f ?^ h « .institute,, and Mr. t - "''th him Mr.v Bunny, for tho Marlborough Education Board> , Boariw ? ,rifS te i the Practice of Education Boards, with the, sole exception of Marlborough,been , t ? .W* 8 teachers without tS any definite term of employment. W? f n ensa E om - c ?t s wer ,° <b y implication) subject to such right on the part of boards to dis- : -miss as had iron; time, to time been set out in snhienf?? °* Acts. .The . engagements were ? to certain rights and privileges Tnnl w l r pon teachers since. tho Public School ieacfiers _ Incorporation and Court of Appeal Acts of 1895 and IS97—the provisions of which Hnn ?^/n ntal ! 1 -°, d 1 1I \?' ;,rt 7111 of the Educam2l 1908-camo into force. J-he Marlborough Education Board had' of recent years .engaged its teachers from year to 'S , n 1 would make its appointments only upon those terms." '' ' \ indgment,. his Honour, said that ! bnrn,,^ C r°i i® system, adopted by the Marlborough Education Board was that, if it was ' wSfni, Provisions of that part of the Act JLol -t 6 ! 3 ™ a teacher a qualified right of appeallt his engagement was terminated by the d n , ot to teachers engaged by the ■ Iff , Bo ? rd - TMs was admitted, and Mr. Skerrett hnd contended that it was within ; a coSt m Ed "cation Board to make such contract. Mr. Myers had submitted that 60 - °"? a sed were -debarred' from parcicipatmg m the . superannuation benefits now reserved to teachers, as these benefits were nloverf" w "Permanently employed. Sir. Skerrett did not admit this. Ho v £ a , teacher so'engaged was in P e ™anent employment" within the proper meaning of the superannuation provisions. The 'ft ™ °? e , of great importance to Eduteach^r^ oal r| S: + a especially to public -school strafe *i answ er depended upon the conActs -SL , .I? r ° v,sl ? ns of the Education •vm' c 9.nsohdated m the Education Act, i«„ \ . " C orl t; ln ' o f the present system of nublic primary education was the Education Act. Ey™:* :hemo of' Which was that its adnjintf£ m n* V m- ed i ln " th , ree distinct authoriftfn tm ? Minister .for Education; (2) distriS. 80 /" ds J , of each' .i education S' . Md (3) / the School Committees for each school district wnr« P t OTOI T <U,t , ics 61 Boards wote to establish, and maintain schools in tho particular education districts, to the funds voted, by Parliament: for' such purpose, and paid to the boards through:the Department of Education, and to exercise - the particular, functions and duties imposed on i ?r Act <;'i T^e® s ' Provisions remained unaltered. Mr. Skerrett had contended- that under,Section 39 of the Act of 190S a board dcVJii. a general right and power to appoint teachers. . In his Honour's opinion this was the wl 7 8S ' lnt ? ndfid merely te j iuthoriso the boards to appoint tho secretarial; inspectorial, and clerical and office staff ; and was not the provision under which a board was author-i-h to employ teachers; In- tho Act .of 1908, tht mtotj ,te appoint- teachers was given Schno? T 1 1' t Passing of the Public Annpil S IM S - j r P? on 3n (l: Court of--3 '«■ 't an 4 'ts amendment of 1897, tenure of office of a teacher was regulated by Seotion |7 ,of tho of 1877. - ThatHeeotion contained an imperative condition-' that no ent C i e n mn ?' -fj® f' — ortj ' to relinquish' his engagement without giving at least'a month's written of lus intention to do so, rand that the engagement-should not be determined SJh? .. ■"• • e xce pt on -giving three. months' -u y 't ■ secretary,' unless" v the; mfckA Snilty ofnnimoral conduct or gross misbehaviour, m which case he could bo summarily dismissed. ■ In-his- Honour's opinion, it loot I CI T l°" btful whether, before the Acts of 1895 1897, an Education' Board'could- Kp- : , point a teacher for a fixed definite period,! and' Act a of 1877 - I ? rovls ! ons . of Section 17 of the continixed- jthe. judge,' "this power which a'Board .of. Education-possessed, of determining tho engagement- of a teacher tipon' a - three months notice without giving anv ? reat ; dissatisfaction among publio school teachers, and, m 1895, the Legislature endeavoured to provide a remedy. It J e ? °r • more .'teachers in an ls t"°t to register themselves as a societi, set., up..a , Teachers'. Court of miS l it^ Uri V oSe i. of . holiri^' and deterniimn 0 appeals by teachers, against dismissal or suspe nSI V Tho appeal t by the society, who were to • become responsible for'costs,■••and tho, Appellate- Court power to determine the appeal according to P?^ 7 fW 1 0? C 0n n olence ' If tho Court dej k® appellant had been wrongfully dismissed- or suspended, the Court had power tojleclore that,- he was - entitled to bo ls . old , Position, or, at the option of the board, to bo appointed to a eimilar position -m another school, and the' Court had power also to order the board to pay -compensation to the teacher for loss of salary. from the date of his dismissal or suspension to the The* A°i "f 5 , ,°r ■ reappointment, iiie Acu of 1895 was defoctire, as it i'd not provide for an appeal, against : the tcrmination ot an engagement by three months* notice, but If rote , l ' re( } to the. 'dismissal or suspenArt nf ISI— cher r. •, K .- 1 lraß amended by an Act of 169 i, in. which it was enacted that a teacher stfhll Tjo deemed to be dismissed in any case-where his engagement 'is determined. wa/fn' 0 ? j > " l th . e .''oard, and such dismissal .to-.be^deemed to bo-wrongful unless tho; board satisfied the • Appellate . Court that the -termination of the engagement was reasonable jegard -to -tlUi efficient .and. iconomicai iV i l l, ,tho>board's affairs, or; 'to 5® . fit Sf ßß of t.he | teacher, or his conduct, 4 or' nf 4° " 3*®° circumstances irrespective of the board s-more, legal right to determine the engagement by . notice. These tho ; Edacat i°n: CompilaContinuing, his Honour said that a -superR i®,? 11111 156611 set up in, 1905 bv tho Teachers Superannuation Act, 1905, and teachers who contributed were bound to 're^ mi n ?y attained the age of <65. f ilie. the.introduction by tKe de. > * of >- srstom ' under which it appointed its-teachers-was to prevent the an. pWtion of that part.of the Education Act Mr °lv gaT H. ft e ?°¥ r a "Bht Of appeal. Mr. Skerrett s nrgiunent was that under such a system the matter was purely one .of contract, the engagement expired, by effhiiimr of time, and, therefore, that the teacher was not dismissed within the meaning of the appellate clauses of the Act. . . . Except Xoa teacher was guilty -of immoral conduct or er°®, misbehaviour no teacher could be sus StJ, °I dismissed, .until the school oommitteo had_ first /been consulted.. Ths system in-' ui j ! .Marlborough Board, if it was % alia, enabled Uieboard.to dispense-with the sernces of a teach«r. : upon the expiration of his term of consulting the committee, and Mr.. Skerrett's' argument was •that was within the board's powers as ,tue teacher was neither suspended' nor disl missed, but simply left at tho expiration of the period of twelve months, unless his term was renewed' by the board., . . . The benefits of the superannuation scheme were limited to teachers permanently employed by •an education board. Those who were ia permanent employment prior to January 1, .1906, had an election to come under the schemo; those who were permanently' appointed after that date must become contributors to the schemo, and had a statutory right to its benefits. Mr. Myers had contended that, if tho system introduced, by tho Mnrlborongh Board was effective, teachers so appointed were debarred from coming within the superannuation scheme, as their appointment was not permanent. Mr. Skerrett did aofr admit this, but contended that the appointment was, in elfcct ft permanent employment. Summing up, his Honour said; "Literally, speaking, Mr. Skorrett is no doubt'right when he states that a'teacher appointed under the system adopted by the'defendant board is not 'dismissed' by the board, nor is his engagement 'terminated by the board' when it expires by effluxion of time. But tho practical cffcct is tho' same. If ho is not reappointed, lie is, in- effect, dismissed by the board, and liis engagement is 'terminated,' It comes to an end.

"I am satisfied that tho manner'of.appointment adopted by' tho. defendant lioard is. intended to operate as ; nn evasion of the provisions of the Education. Act, and, is especially an, attempt to get outside the provisions of tho Act which havo given to a teacher a appeal*. . ■>~;;:;..

the Legislature intended to vest in a teacher' a certain kind "of" liihitod" security (it tenure, of office. • .This system deprives a teacher of that limited security. ;, It .is admitted to be the general system of appointment adopted by the defendant board. A teacher, whose appointment would otherwise carry with it the right; of appeal, if it should ho determined by the board, is required, if ho takes ofhee under this board,' to-give up this iltV 1 iPP<? ai >' a right secured to him* by statute. Jlo is. also required to. give up the right vested in him by statute to relinquish ms appointment upon giving a month's notice, in my opinion, an,appointment made on'these tomsis not contemplated by the f Act,,and is not within the provisions I have referred to as the power of appointment possessed by-a board of education. It is indeed in direct conti'avention of Clause it of '"V , . Snc ? an appointment not only purports, to deprive the teacher, of his right of ~?J? -Ü bnt A." 180 Pwports to deprive the committees of their right of consultation upon its termination. Por, if it is valid,- then, at. the expiration of the twelve mouths,..if the board does not renew it, the.teacher Si bo I? the , s ««ice of the board. He innst leavo the school, and the committee's right to consultation, upon the termination £Lw 0 "* is . '"St- ' This clearly is against the true meaning of the statute. , - „„ .Tji of ,;opinion that its.result is to prevent the. application.of the superannuation scheme; .I cannot- accept Mr. ' Skorrctt's arsuineut that a teacher, who, under his contract oi service, • must,-if .the: appoint--11 ot ' ro " ew «'. leave at'.the expiration' ot twelve months, is nevertheless in the permanent employment of the board..Tho teacher, Sr™. to , rms , of cmploj-rocnt insisted: on hy the defendant board,- has no right of reappointment. He is only to-be-reappointed if he continues to\ give, satisfaction'to tbo board the hoard has reserved to itself an absolute ~ifn l -°? t a - s to o w K other 't will or nill -not jeappoint him. Such.a system is but a mere temporary appointment of a teacher, and .tho Act _ contemplates that the general . staff of teachers employed by. a-.board, shall- have something more than a .mere temporary tenure measured only, by a?definite', period, of -one twelve months. Where 'the' .exigencies of a school require a temporary appointment to he made, the Act upccificallv provides ,for it, and limits the period to one not exceeding three months. ;?.,.' ■■■'■ - '*2£a "l?' « pi "] o ?' ,' tte <>fore, tbe system adopted _by the defendant board' is in breach of tho Education Act-.for the following rea-

"(1) It purports, ,to. deprive a teacher of • a statutory right of appeal against the terniina: iion ot nis engagement.- ■,'.'■ .*'(» :It prevents the teacher, from relinquishing)Uis; engagement as provided by the statute, and. it prevents the . board, even if the economical and efficient administration of itl fT™^™ 85 " t . o . m P° r ? r % require it to do from terminating during a fixed period' of •tTvelvo months, tho engajement of the teacher. Nt ft' •fv « ls to'dcpriTo tho committees of the right of consultation in reference to the termination of the teacher's engagement. • A*) It provides • for- a meroly temnorarv appointment and: thus renders y a bortTv?'S P «r«'?? S ' of the Snperannuation'Act. y , (5) It is general in its terms, and purports f^ 1 "Hi th £ teachcr s employed by the defendant board Therefore, under tho system adopted by the defendant board, the p?ovS f n > f a PP? aI of the committee upon-terminationof the teacher's engagement and the superannuation scheme (wST°visions are, statutory rights conferred upon & r '% a ?£ "»">«>«««) are ignored, and rcndered, if the. system is / effective, ■ inapplicable board. 0 - aChDrS m^ei M <¥ SdaTt , "I therefore answer the question, stated in the summons as system aZte ?f w n^ ar i 18 IQ breacU of tlm; statute, and Loa^f' "* p ° wer aud ..authority of tho ; The, settlement -of costs was deferred, his .Honour .intimating, that this need not impede any appeal proceedings. Mr. Skerfett sad that brought ° lyimprobable an "N"* l ™M So

NORTHHLAND SPECIAL RATES.

WHO'SHALL COLLECT THESI? The appeal, heard some time ago, regarding the decision of Dr. M'Arthur,. S.M., in an cw"i fol, , th « recovery ;of Karori Borough--special-rates was decided by Mr. Justico mo o rnlng. ,D ' the , S W e ™ ,on Satoday tn «v B ol'''?g ist i; ate h i d <& e K in<3Bmcnt' : in fa--1 U- ih l )TS BIL in 3L™ / n wh 1 1 , 0 l'*ey took agaWst Charles'Anderson (appellant)-.,fp,r,..the recovery,of certainspecial ratos -made;over-.Hie Avhole of: the'! borough of Karori.. The judgment, was': based upon a statement of facts agreed upon by tho parties. Special.rates, over' the 'Vholo.-'of thouprough : had been.made in respeot..'of;-special loans, and on April',2,, 1908,.! of Wprthland j was severed,, by,, Order-in-Councih '. from the borough of Karori,, and included in the.city of Wellington: The' land in respect ot which the rates were sued for was part of the district of .Northland.-'The'locarbodies' were differently advised as to -whiclrof them' was entitled to collect the special rates over the Northland district., Appellant disputed his liability upon the following grounds :— (1)1 hat the v rate demand:-did not show whether the rates'.were demanded of. him»as occupier or owner. ...,,.. (2) That the rate demand did not correctly show the period for. which l the special rates' were payable..-- . -~ . (3) That readjustment, had been made tween the,city of Wellington and the borough of Karon, as required by law> ... . W That, after- tlio .inclusion 'of Northland ■' in tae city, the Karori Borough Council'had no,power to make or,,adopt a valuation roll or rate-book :qver the: district, or to. demand or recover rates thereon. ,(5) That,; pending the statutory adjustment, the ivarpn Jiorough Council hnd no such power.. , . -..:'■ ;, : v (6)-That therefore,,itho dofendant was not liable. .: , .-.. . .... .- •

Ti £• '^V? 1 , appeared for the: appellant,/ and Mr. T.W; Jhslop for the borough council. •?'J"°, con rse of his judgment, his Honour said that, when- alteration; of borough houn. Danes occurred,. Section 127 of-the Municipal Corporations,; Act, 1903, 'provided for the ad. justnient of property,' liabilities, contracts, and engagements between the respective boroughs, ibis adjustment was to be by agreemont, and, it no -agreement was arrived ■ at' within the prescribed • time and manner, then tho Govcrnorwas>mako the adjustment. Tho pre: : scribed hmo within which the. agreement was to be- made by the two boroughs was three : montns; and this had,, long . since expired; Neither local body had,: applied to the Governor for an'adjustment by him, and, apparently" tbcro'was something like a deadlock, and no adjustment had made, or was apparently in' contemjilation/ In his Honour's 'opinion, it was clear that was made, tho local- body primarily liable for the loan and interest in respect'of which the rate was made, and whose liability continued' at least until adjustment, must bo the authority entitled to receive, and .therefore to'collect; the'' special rate. Counsel for the' appellant had" boen unable to point to any statutory. provision which, would entitle; the. corporation of .Weilington, before adjustment was made, to collect these, rates,, and'.his Honour had: been unable to, discover x any. • .Counsel,.had based: his argument solely -upon the assumption that because the rating territory:had.been divested ! r °S fe■ 1 '? s P;»«feut_ borough and transferred to the Wellington city, that therefore the Wei. lington corporation was the local authority t> levy and .collect the rate. If.the .liability TJV 0 !" 1 ha i bee 'i >'«>n oven by the city of.Wellington, then this would probably have licen the case, but, tho respondents.werestill l liable, to the creditors.: It was' this-duty™ the respondent borough, to, .protect. itself and I^ C r I,to ! S -! at - ,P iy t; W *¥ made), and it could not >do' tliis' until it had power to levy and ; collect the annually recurnng rates,. The. other branch ■ of: the ■ argl Tu n } f "J,' the appoUantion'!the point- wm that until the adjustaent was made the spedal rates could not be collected at all. The adjust i ment might be. postponed for an indefinite ' time and the debenture Elders' security St S&J* f? h , rKistponemtmt, preju diced and lessened, for Section 71 of the R n r ingl Act prevente.l the recovery of rate after two. years from thotime when such ratos be. camo due and payable. ; « "los.ue. The techmcal objections regarding the ratn demand were and the appeal dis! missed; .with, five guneas costs; '

CRIMINAL SESSIONS.

TEN CASES FOR TRIAL. '', The criminal sessions, of the Supremo Court will bo.commenced in Wellington at 11 o'clocl 1 nor-to-the empanelling of-the iurv sontance wiU on theWtag Knew w . h ° £ a ™ pleaded guilty:-Thomas Aubne Octobor 30; Edgar Joseph Mercer, theft, Win JJoycraber i; Alexander -Koch,, forgery and ut 10, Ronald Scaforth Jones, breaking: and outer- '?» a™ l theft Wellii«rton, NovemScr JO;!Xt ■Melville, ■-.nssault..causing acter-bodayharaV Palmerston North,, ivovembor 10. ' ™?" •- Thoro aro ten charges for trial; as A:»dre«- P.-ralson, the?t from a drolling, Weilington, bepiember 8; Charles Taylor, a seriaid SfNaughton; theft from the person, Wolj«hV\i'&vmb6r' 15 i. Thon V* biggins audi John_M Catthy, ■-, bodily^

hurra, Soptomfccr 15?' Alfred Laua '?' ley and Roland Jolin' Ear;™, breaking and enV? .' tering and theft, ■■ Masterton, September 24(" Ernest-ISdward Moy.es and IJva Maud Moyfas, ' ■' false! declarations' nndor the Marriage Act i Wellington, September 22; Alfred George Dris-v coll and Thomas O'Neill,breaking and enter..". liig.aiid theft, Wellington, October 6; Patrick v Murphy; ahas Patrick Kelly,; thoft,Wellington, • - October, 11; Barnet Sowry, Frederick Gooch,' ' and Bert. Andrews; assault, causing actual bod '": Jjy narnv Wellington, Octobers 15; Alfrei ;": Charles Warren, abduction, Masterton, Octobo,' '