Royal College of Surgeons of England v National Provincial Bank Ltd and Ors

[1952] A.C. 631

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(Judgment by: Lord Tucker)

Between: Royal College of Surgeons of England - Appellant
And: National Provincial Bank Ltd and Ors - Respondents

Court:

Judges: Lord Normand
Lord Morton of Henryton
Lord Reid

Lord TuckerLord Cohen

Subject References:
CHARITY
Royal College of Surgeons
Incorporation by Royal Charter
Objects
Charitable institution
Will
Construction Gift to hospital for department of medical school
Defeasance to operate if hospital nationalized
Nationalization of hospital but not of medical school

Legislative References:
National Health Service Act, 1946 (9 & 10 Geo. 6, c. 81) - ss. 6, 7, 8 (2), 11 (8), 151

Hearing date: 20-21, 26-28 February 1952
Judgment date: 3 April 1952

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Judgment by:
Lord Tucker

My Lords, the Court of Appeal were unanimous in holding that, on the true construction of clause 11 of the will of the late Lady Edith Goff Bland-Sutton, the Middlesex Hospital had, in the events which happened, "become nationalized" within the meaning of that clause, with the result that the gift over, if valid, took effect. I agree, and have nothing to add on this part of the case.

In your Lordships' House a new point not relied on in the Court of Appeal was advanced by the respondents to the effect that the gift over was not saved from the rule against perpetuities unless both before and after the gift over takes effect the property in question is inalienable because it is held on trust and that the property of the Royal College of Surgeons, a body incorporated by charter, is not impressed with a trust nor is the corporation subject to the doctrine of ultra vires as in the case of statutory corporations. It is said that the language used by Lord Cottenham in Christ's Hospital v. Grainger ^[F67] in the year 1848 was wider than was necessary for the decision on the facts of that case, and that it has ever since been erroneously considered to apply in all cases where the gift over is from one charity to another. On this point I agree with your Lordships that the real reason for this exception to the rule against perpetuities is to be found in the fact that the court leans in favour of charity, and that in any event an interpretation which has been accepted and acted upon for more than a hundred years should not now be disturbed.

The last and more difficult question is whether the gift over can in any event take effect in favour of the College of Surgeons, in other words: Are the objects of the college exclusively charitable? which can for the sake of brevity be expressed as: Is the college a charity? Danckwerts J. held that it is, but the Court of Appeal felt themselves compelled to the contrary view by the construction which had been placed on the charters of the college by the Court of Appeal in the case of In re Royal College of Surgeons of England, ^[F68] in a judgment delivered by Romer L.J., in which it was held that the college had two main objects:

(1)

the promotion of the science of surgery, and

(2)

the promotion and encouragement of the practice of surgery, including the promotion of the interests of those practising or about to practice surgery as a profession,

and also including the examination of students and others to qualify for practice in honours in surgery.

In that case the court was concerned with an exemption in favour of "property which, or the income or profits whereof, shall be legally appropriated and applied ... for the promotion of ... science" under section 11 of the Customs and Inland Revenue Act, 1885. But although the question in issue was different from that in the present case it did necessitate an inquiry into the purposes of the college as shown in its charters, and it was held that the college had the two main objects stated above neither of which could be considered as subsidiary to the other. Accordingly the Court of Appeal in the instant case felt bound to proceed on the basis of the existence of these two main objects, with the necessary consequence that the college could not be held to be a charity. My Lords, although I do not question the correctness of the actual decision of the Court of Appeal in the 1899 case, I am unable to accept the construction put upon the charters by the court. The relevant passage in the first charter of 1800 is in the fifth paragraph of the recitals and is as follows:

"And whereas we are informed that the said corporation of master, governors and commonalty of the art and science of surgeons of London, hath become and now is dissolved: And whereas, it is of great consequence to the commonweal of this Kingdom, that the art and science of surgery should be duly promoted: And whereas, 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.

Now We, ... do will, ordain, constitute, and declare, give and grant,"

etc. Similar language is used in the subsequent charters of 1822 and 1843.

Nowhere in the operative parts of the charters are there to be found any expressed objects, but it is, I think, clear from the language of the charters taken as a whole that the objects of the college in the present case are to be found in the recitals taken in conjunction with what follows in the operative parts, and indeed the charters were so construed by the Court of Appeal in the 1899 case.

In my view, the objects of the college as set out in the charter of 1800, and never thereafter varied, were (1) the promotion of the science of surgery; (2) the promotion of education in surgery. The latter can only be achieved by practice as well as study, and the holding of examinations is an essential step in the educational process. I can find nothing to warrant the view that in this context the word "practice" means the carrying on of their professional activities for pecuniary gain by the members of the college or the profession at large. The remaining provisions of the charters and the by-laws made pursuant thereto are all governed by the language of the recital, and are to be construed as conferring the necessary powers incidental to the previously expressed purposes of the college. The fact that provision is made for some measure of disciplinary control over the members, and that the college undertakes to protect its fellows, members and licentiates in the exercise and enjoyment of the rights and privileges acquired by them as diplomates of the college (by-law XV) are examples of such incidental powers, there being nothing in the charters to suggest that the college was established to further the interests of the profession or the enforcement of professional discipline.

It was argued that whatever is the proper construction to be put on the words in the recital standing by themselves yet having regard to the fact that the college was established in place of the dissolved company called "The master, governors and commonalty of the art and science of surgeons of London" and was expressly given power "to transact and ordain all such other matters and things as the master, etc., of the late dissolved company or corporation might heretofore lawfully do, transact, or ordain" it was thereby given powers co-extensive with those of the dissolved corporation the precise objects of which are not known but whose members enjoyed certain liberties and franchises within the City of London and as to which there are no grounds for presuming it to have been a charity.

It does not, however, appear from the charter that the college was in every respect a successor to the previous company. The old company had ceased to exist. We do not know the date. A new body was created. It was expressly provided that the Corporation of the City of London should have no jurisdiction over the college and that no member of the college should by virtue of the charter be entitled to any franchise belonging to the freedom of the City of London. The college, however, enjoyed all the other privileges and possessions granted by previous Acts or letters patent or otherwise acquired by the former company.

We have, therefore, a new entity divorced from the City - with no guild taint attaching to it - but holding the property of the old company and having expressly conferred on it one of the functions of the old company, viz., the dissecting and anatomizing of the bodies of murderers. It is, however, expressly established for the purposes previously stated and I cannot find anything in the charter to suggest that its objects are intended to be extended by implication beyond the promotion and encouragement of the study and practice of surgery. No provision is made for a general meeting of the members of the college but the conduct of its business and the power to make by-laws, etc., is committed to a court of assistants on whom are conferred the same powers as were vested in the court of assistants of the dissolved company. This is merely the machinery of government and does not extend the powers of the college beyond what is necessary for carrying out the previously expressed purposes for which it had been established.

I am accordingly of opinion that, on the true construction of its charters, the College of Surgeons of England is a charity, and that this appeal should succeed.