CIRCULAR LETTERS OF EDUCATION
DEPARTMENT.

TRANSFER OF SCHOOLS TO SCHOOL BOARDS.

SIR,

EDUCATION DEPARTMENT, January 1, 1872.

Various questions having been addressed to this Department as to the interpretation to be put upon the minute affecting transfers, which was passed on the 17th day of July, 1871,' I am desired by my Lords to furnish you with the following explanations:

1. According to Resolution II. of that Minute, in all cases in which the School Board are satisfied that any person has, independently of the Elementary Education Act, 1870, legal power to sell, let, transfer, or deal with any tenements, whether occupied as school-houses or not, the School Board may deal with such person with respect to such tenements without the intervention of the Education Department. In such cases the School Board exercise the powers vested in them by Secs. 18 and 19 of the Education Act, and the consent provided for under Sec. 23 is not required. The same rule applies to any sale, lease, transfer of, or dealing with, books, school apparatus, or other school property over which any person has power of alienation.

2. But if an "Elementary School" (Sec. 3) is vested in certain persons, as trustees, and these trustees have no power, independently of Sec. 23 of the Elementary Education Act, to sell, lease, transfer, or deal with such school, then if the school is to be transferred to a School Board, recourse must be had to that Section. It provides the means by which a proposed transfer can be effected, and it should be observed that were it not for that Section the managers of a school might be compelled, if subscriptions should fail, to retain a school-house, without teachers and without scholars; whereas by taking advantage of that Section, the managers in such an emergency are enabled to transfer their school to the Board who have power (Secs. 18 and 19) to enlarge or improve it, and keep it in a state of efficiency.

3. But, further, according to the construction of Sec. 23, adopted in the Minute, July 17th, 1871, the managers have power to transfer their school, only in order to relieve themselves from the responsibility of maintaining it, and for no other purpose. It was not the purpose of the Legislature to enable trustees or managers to obtain money for property held by them in

1 For Minute of 17th July, 1871, see p. 92.

trust or for the discharge of debts for which they may have made themselves personally responsible. If, indeed, it can be shown that the trustees of the school or other persons have, independently of the Act-by virtue of the original trust or otherwise-any legal power to charge, encumber, or mortgage the school premises, and that such power has been exercised, the mortgagee or incumbrancer will be protected, and any transfer will be made subject to the legal or equitable rights of such mortgagee or incumbrancer, whose rights are recognised by the 23rd Section. But if, independently of the Education Act, there is no power to charge or encumber the premises, then the consideration for the transfer thereof must be nominal.

When schools have been erected partly by pecuniary aid from the Parliamentary Grant, they cannot be legally mortgaged or encumbered, and therefore in such cases a mortgage or incumbrance cannot be recognised by the Department.

4. Arrangements are sometimes proposed, which contemplate the payment of school expenses incurred prior to the date of the transfer, but not charged upon the premises. But according to the Elementary Education Act, 1870, the rate-payers cannot be made to contribute towards the expenses of any school, unless it be a school "provided by a School Board," which means (Sec. 14) "a school conducted under the control and management of a School Board;" so that, until the date of transfer, a School Board cannot undertake to contribute towards the expense of its maintenance.

5. In cases in which a transfer of a school in receipt of annual grants takes place in the course of the school-year (New Code, Art. 13), the managers may make an arrangement to claim such proportion of the grant as corresponds to the number of months which have elapsed between the end of the last school-year and the date of the transfer.

I am,

&c.,
PATRICK CUMIN.

FORM OF TRANSFER OF SCHOOLS TO SCHOOL BOARD.

MEMORANDUM OF ARRANGEMENT made the

Managers of the

between

day of

the

School, which said persons above named are hereinafter called "The Managers," and which said School is hereinafter called "The School," of the one part, and The School Board for hereinafter called "The Board," of the

other part.

A. Whereas "The Managers" are Managers within the meaning of the Elementary Education Act, 1870, and "The School" is an Elementary School in the District of the Board:

In cases falling under Section 23 (1) of the Elementary Education Act use B. C.

B.-And whereas by an instrument declaring the trusts of the school, to wit, an Indenture bearing date the

and made between

[Insert Parties.]

it is provided that

day of

[State the manner in which, and the assent with which, a Resolution or Act binding the Managers is to be passed or done. S. 23. (1).]

but such instrument contains no provision for the alienation of the school :1 C. And whereas the arrangement hereinafter set forth has been proposed by the Managers, and assented to by the Board: And the Managers in pursuance of such proposal have passed a resolution on the

day of

according to the manner in which, and with the assent with which a resolution binding the Managers was to be passed.

In cases falling under Sec. 23 (2) (3) of the Elementary Education Act, instead of B. let B', and instead of C. let C1 or C2 be substituted.

B'.-And whereas there is no instrument declaring the trusts of the school or containing any provision with respect to the manner in which or the assent with which a resolution or act binding the managers is to be passed or done.

C'. And whereas the arrangement hereinafter set forth has been proposed by the managers and assented to by the board, and the managers in pursuance of such proposal have passed a resolution in the manner in which and with the assent with which it has been shown to the Education Department to have been usual for a resolution binding the managers to be passed.

[Or if no manner or assent can be shown to have been usual.]

day of

C.-And whereas the arrangement hereinafter set forth has been proposed by the managers and assented to by the board, and the said arrangement on the received the assent of being not less than two-thirds of those members of the body of managers who were present at a meeting of the body summoned for the purpose and voted on the question.

D. And whereas there are no annual subscribers to the school:

[or if there are annual subscribers]

D'. And whereas on the

ment received the consent of

day of

the said arrange

(not being less than two

thirds) of the annual subscribers to the school who were present at a meeting duly summoned, and voted on the question.

1 When there is any provision "for the alienation of the School by any persons or in any manner or subject to any consent, any arrangement under this section shall be made by the persons in the manner and with the consent so provided." -Education Act, 1870, Section 23.

E. And whereas the proposed arrangement received the consent of the Education Department on the day of F.-Now it is hereby agreed between the managers and the board as follows:-1

[State the terms of the Agreement.]

Provided always that notwithstanding anything expressed or contained in the present arrangement, the school board shall continue in possession of the school premises until the expiration of a period not exceeding 12 months to be fixed by the school board after the value of any works executed with the aid of a loan shall have been repaid to the school board.

The aforesaid value shall be the value at the time when the repayment is made in full and the amount to be so repaid shall be ascertained and certified by a surveyor selected jointly by the school board and the managers to whom the school will revert when it ceases to be a school provided by the board. In the event of their disagreement the surveyor shall be appointed by the Education Department and his expenses defrayed by the school board and managers in such proportions as the department shall direct.

the school hereby transferred shall, to such extent and during such times as the board have under the said arrangement any control over such school, be deemed to be a school provided by the board within the meaning of the Elementary Education Act, 1870. In witness, &c.

INSTRUCTIONS OF EDUCATION DEPARTMENT AS TO
PREPARATION OF DRAFT ARRANGEMENT FOR

TRANSFER.

*

9. (a) In preparing a draft arrangement for transfer for submission to the Department under section 23, one of the printed forms supplied by the Department must be used, and not a manuscript draft.

(b) The arrangement should be submitted to the Education Department as a draft, i.e., unexecuted.

(c) No arrangement under section 23, nor any instrument in pursuance thereof should be executed until a copy of the proposed terms

1 [N.B.-The terms of the arrangement may vary according to the views and instructions of the parties. The only limit is expressed in that paragraph of s. 23, beginning "An arrangement under this section may provide," and ending "or endowment transferred to them," and in the paragraph which follows and ends "required under the arrangement.' In framing any arrangement special attention should be given to the Minute dated 17th July, 1871, and particularly to that portion of it which forbids the managers stipulating for more than a nominal consideration. It is to be observed that, according to s. 23, the managers may convey to the board all such interest in the schoolhouse and endowments as is vested in them, or in any trustee for them.]

of arrangement, with the formal printed approval of the Department attached has been sent to the clerk of the school board by the Education Department.

(d) The consent of the Education Department to an arrangement under section 23 is confined to approving, as stated in paragraph 9 (c) ante, a copy of the draft terms of arrangement. It must rest with the parties concerned, acting under proper legal advice, to determine what further proceedings may be required to complete the transfer. The Department does not give advice or direction on this point.

10. In preparing the draft for submission to the Education Department, the instructions contained in the following paragraphs, 11 to 22, should be carefully attended to in all cases where there is an instrument declaring the trusts of the school, but such instrument does not contain any provision for the alienation of the school by any persons or in any manner, or subject to any consent.

11. The date on page 1, and the date in paragraph G should be left blank in the first instance, as neither of these dates must be earlier than the date of the consent of the Education Department to the term of arrangement for transfer. The date of that consent cannot be earlier than the day on which the Department is satisfied that the other preliminary conditions required by section 23 have been duly fulfilled.

12. The managers are the proper parties to the arrangement, and their names should be inserted in page 1.

13. The school board, as a corporate body, must be a party to the arrangement, and the members of the school board as individuals should not be named as parties.

14. In paragraph B must be inserted the date and parties to the school trust deed; the trusts, however, need not be set forth. If the instrument of trust is not a deed, the date of the instrument and a very brief description of such instrument should be given.

15. In cases to which paragraph (1) of section 23 applies :(a) There should be inserted after the words "it is provided that," in paragraph B, a recital of the manner in which, and the assent with which the instrument of trust provides that a resolution or act binding the managers is to be passed or done [e.g., if there is any provision in reference to the decisions of the managers as to a majority, or as to a casting vote of the chairman, that should be recited.]

(b) The proper date should be inserted in paragraph C.

(c) Paragraphs B', C', and C2 should be struck out.

16. In cases to which paragraph (2) of section 23 applies:

(a) The words, "it is provided that," in paragraph B should be struck out.

(b) In paragraph B' the words, "declaring the trusts of the school or," must be struck out.

(c) Paragraph C' should be allowed to stand. Care must be taken to