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qualified to elect to the office of councillor; which last-men- Council;
Mayor, tioned qualification for being elected shall be alternative for Aldermen, and
Councillors. and shall not repeal or take away any other qualification.
(See Flintham v. Roxburgh, 17 Q.B.D. 44 (argued in 1886), and wherein it was held that a person not qualified to be a burgess, who had been enrolled on the burgess roll, and was therefore entitled to vote under sec. 51, was not therefore qualified to be elected a councillor under this subsection, he not being “ entitled ” to be enrolled.]
(4.) But if a person qualified under the last foregoing proviso ceases for six months to reside in the borough, he shall cease to be qualified under that proviso, and his office shall become vacant, unless he was at the time of his election and continues to be qualified in some other manner.
[The effect of sections 25 and 28 of the Act of 1835, section 3 cf 32 & 33 Vict. c. 55 (1869), and 43 Vict. c. 17 (1880), is preserved in this clause. Subsection 2, paragraph a, has been settled with reference to the case of Middleton and others v. Simpson (L.R., 5 C.P.D., 183), which was a petition against the return of the respondent as town councillor for a ward in Liverpool. The election commissioner reserved, for the opinion of the higher court, the question of law whether the burgess list and roll were conclusive. Coleridge L.C.J. and JJ. Grove and Lindley held that to be eligible for the office of town councillor a candidate must be “ entitled to be on" the burgess roll, and that the fact of his name being on the roll is not conclusive evidence that he is “entitled to be on." It does not, therefore, follow that because an individual procures bis enrolment as a burgess he is thereby secured in the privileges of the position, should his enrolment have taken place in ignorance, or otherwise of his disqualification to be on the roll. See also section 73, and paragraph c, subsection 1, clause 87, of this Act. Ex parte Birkbeck (L, R., 9 Q. B., 256), -It was held that under the old law, not repealed by 38 & 39 Vict. c. 40, it was the existence of the right to be on the burgess roll and not the fact of being on it, which was. to be considered in regard to the right of town councillors. Ex parte Hindmarch, (L. R., 3 Q. B., p. 12).-Motion for a quo warranto against a town councillor on the roll was made on the ground that he was not duly qualified : per Cockburn C. J. “Proceedings not taken in due time and therefore held to be entitled to be on the list.” It is not necessary that the qualification of a burgess for the office of councillor in his borongh should be in the ward he seeks to represent.] 12.-(1.) A person shall be disqualified for being elected Disqnalifica
tions for being and for being a councillor, if and while he(a.) Is an elective auditor or a revising assessor*, or holds any
office or place of profit, other than that of mayor or
sheriff, in the gist or disposal of the council ; or [The distinction shown to exist in the case of Ex parte Molesworth (L. R., 7 Q. B. 209), whereon a motion was made for an information calling upon James Adams to show by what right he exercised the office of councillor of the city of Chichester was here done away with. JJ. Lush and Hannen held in the case cited that ward assessors appointed under 7 Will, 4 & 1 Vict. c. 78, 8. 4, were not disqualified from serving as councillors, but that the objection held good against borough assessors elected under the Act of 1836, section 37. The learned judges were, however, of opinion that considerable doubt did exist, and by this Act the ward assessorships were abolished. An overseer of the poor in a borough is not disqualified, as such, from taking office as a councillor if qualified in other respects.]
* This office was practically abolished by the County Electors Act, 1888 (section 4, subsection 1, paragraph a).
Council; (6.) Is in holy orders, or the regular minister of a dissenting
[On the motion for a quo warranto information against a town councillor of a
share or interest in any contract or employment with,
by, or on behalf of the council : (The disqualification under this section which is similar to that in section 28, 5 & 6 Will. 4, c. 76, appli's only during the continuance of the contract, so that by becoming interested in such a contract an alderman or councillor does not cease to be qualified, or become disqualified within the meaning of section 53 of Act cited, so as to incur penalties for acting after the termination of the contract, Lewis v. Carr (L. J., 1 Ex. D., 484). Words “contract” or "employment will receive the widest interpretation. Contract need not be under seal, Reg. v. Francis (18 Q. B., 526: S. E. L. T., Q. B., 304). A lease by corporation to a stranger in trust for councillor, held within meaning, Simpson v. Ready (12 M. & W., 736); but such is provided for in the subsection fullowing. Amongst other cases which provide rulings on this subject are Lefeuvre v. Lancaster (3 E. & B., 530). Fletcher v. Hudson (46 L. T. R. (N. 8.), 125). Nicholson v. Fields 21 L. J., Ex. 233). Reg. v. Gascarth (42 L. T. (N.s.), 688.]
(2.) But a person shall not be so disqualified, or be deemed to have
any share or interest in such a contract or employment, by reason only of his having any share or interest in(a.) Any lease, sale, or purchase of land, or any agreement
for the same; or (6.) Any agreement for the loan of money, or any security
for the payment of money only; or (c.) Any newspaper in which any advertisement relating to
the affairs of the borough or council is inserted; or (d.) Any company which contracts with the council for
lighting or supplying with water or insuring against fire
any part of the borough; or (With reference to this paragraph the following question, with the answers,may be of interest-Query: "Can A.B. legally act as an alderman-or is he disqualified for that office-by reason of his holding the appointment of paid clerk to a committee composed of several representatives of various local authorities constituted
* This disqualification, as well as that of peers owning property in a county, is removed in the case of county councils under the Local Government (England and Wales) Act, 1588. See Appendix.
for the purpose of supplying certain districts with water-the borongh for which Council ; he, A.B., acts as alderman being one of those districts ?”- Answers.-(1.) If the Mayor waterworks committee is a committee of the corporation, and regarded as such, Aldermen, and and the representatives of other authorities are admitted to take part in it's Councillors. deliberations and proceedings under the powers of any resolution of the council, then A. B. is unquestionably debarred from holding the office of alderman during the time he acts as paid clerk of the committee. (2.) But if the committee is constituted and is an authority perfectly distinct from the council, and not required to submit its acts and proceedings for the approval of the council, then A. B. is not disqualified from simultaneously holding the office of alderman of the council and paid clerk to the committee. If the committee has power to make contracts independently of the authority of the council the point is without doubt. Paragraph d in subsection 2 of section 12 of the DIunicipal Corporations Act, 1882, would then apply to the case.
.") (e.) Any railway company, or any company incorporated by
Act of Parliament or Royal charter, or under the
Companies' Act, 1862.* [The effect of section 28 of the Act of 1835, section 15 of 7 Will, 4 ard 1 Vict. c. 78 (1837), sertions 1, 7 and 8 of 5 & 6 Vict. c. 104 (1842), sections 1 and 6 of 15 & 16 Vict. c. 5 (1852), and section 5 of 32 & 33 Vict. c. 55 (1869), is preserved in this clause.]
and rotation of councillors.
13.-(1.) The term of office of a councillor shall be three Term of office years.
(2.)–On the ordinary day of election of councillors in every year one third of the whole number of councillors for the borough or for the ward, as the case may be, shall go out of office, and their places shall be filled by election.
(3.) The third to go out shall be the councillors who have been longest in office without re-election.
[The effect of sections 30, 31 and 43 of the Act of 1835 is preserved in this clause.]
14.-(1.) The aldermen shall be fit persons elected by the Number, term council.
of othice, and rotati n of
aldermen, [The use here of the word “fit " implies that the office is to be regarded as one of honour and dignity.]
(2.) The number of aldermen shall be one third of the number of councillors.
(3.) A person shall not be qualified to be elected or to be an alderman unless he is a councillor or qualified to be a councillor.
(4.) If a councillor is elected to, and accepts, the office of alderman he vacates his office of councillor.
(5.) The term of office of an alderman shall be six years.
• The 25 & 26 Vict. c. 89.
(6.) On the ordinary day of election of aldermen in every Mayor, queen and third year one half of the whole number of aldermen shall go Councillors. out of office, and their places shall be filled by election.
(7.) The half to go out shall be those who have been aldermen for the longest time without re-election.
[The effect of sections 25 and 27 of the Act of 1835 is preserved in this clause.]
15.- (1.) The mayor shall be a fit person elected by the council from among the aldermen or councillors or persons qualified to be such.
[This subsection effects a very important amendment of the Act of 1835. By section 49 of that statute the mayor was to be elected from the aldermen or councillors. No person could, therefore, fill the chief magistracy without preliminary election by the burgesses as a councillor, or appointment by the council as alderman. At the same time this restriction did not prevent the possibility of a curious and to some extent inconsistent circumstance happening every third year if the council so pleased. By section 43 of the Act of 1835 the first business to be transacted at the quarterly meeting falling on the 9th of November in each year was specifically confined to the election of a mayor. An outgoing alderman could be elected without his subsequent re-election as alderman being required or involved. The ordinary and legal number of the council would apparently be thus increased by one, but, in an appointment under such circumstances, it would become difficult to determine how far the mayor was a member of the council or was not. An incident of this character marked the mayoralty election of St. Ives, in Cornwall, on the 9th November, 1880* The newly-elected mayor was one of the retiring aldermen. He was not reelected as alderman, and the town clerk on being appealed to advised that the mayoralty should be retained, but that no vote could or should be given except a casting vote as mayor in the event of an equal division of the council, he (the mayor) not being a member of the council, but only an officer, with certain powers under the law. There is no doubt of the soundness of the town clerk's advice ; but it is as well that this subsection, and the following one, which may be regarded as a necessary corollary, have met the point alluded to in addition to giving the council a wider field for the choice of a “fit” person for the honourable position of chief magistrate. Any properly qualified burgess can now be elected as mayor to the exclusion of members of the council.]
(2.) An outgoing alderman is eligible.
[The note to the preceding subsection should be read with this.]
(3.) The term of office of the mayor shall be one year, but he shall continue in office until his successor has accepted office and made and subscribed the required declaration,
[This subsection ensures the perpetuity of the mayoralty except in the event of death.]
See the “Municipal Corporations Companion and Year Book of Statistics" (J. R. Somers Vine) for 1881, p. 402: Waterlow & Sons Limited, London Wall.
(4.) He may receive such remuneration as the council think Council ;
Councillors. [It may be observed here that it is a custom which has been generally adopted for a council desiring to spend a sum of money upon objects which are outside the application thereto of the money of the ratepayers, to attain the end desired by voting the amount needed as a temporary increase of salary to the mayor.]
(5.) He shall, subject to the provisions of this Act respecting justices, have precedence in all places in the borough.
[The proviso in this subsection applies in cases where a borough has not a separate commission of the peace, and is comprised in a county petty sessional division. The mayor may claim to be in the chair when the business to be transacted arises in his own borough, but not otherwise. The application of this Act to county councils by the Local Government Act, 1888, is not to include this subsection. See section 75, subsection 16, paragraph b, of that Act.]
(6.) The mayor of a borough named in the schedules to the Municipal Corporations Act, 1835, shall be capable in law to do and suffer all acts which the chief officer of the borough might at the passing of that Act lawfully do or suffer, as far as the same were not altered or annulled by that Act, or have not been altered or annulled by any subsequent Act.
[The effect of sections 6, 25, 49, 57, and 58 of the Act of 1835, and section 4 of 6 & 7 Will. 4, c. 105 (1836), is preserved by this clause (16), so far as election of mayor by the council. The area of selection is extended to those qualified to be aldermoen or councillors, election to the latter no longer being a condition prece. dent of eligibility for former Subsection 6 is simply a saving of ancient rights. ]
16.-(1.) The mayor may from time to time appoint an Power of mayor alderman or councillor to act as deputy mayor during the deputy. illness or absence of the mayor.
(2.) The appointment shall be signified to the council in writing, and be recorded in their minutes.
(3.) A deputy mayor may, while acting as such, do all acts which the mayor as such might do, except that he shall not take the chair at a meeting of the council, unless specially appointed by the meeting to do so, and shall not, unless he is a justice, act as a justice or in any judicial capacity.
[The effect of sections 7 and 8 of 16 & 17 Vict. c. 79 (1853), is preserved in this clause. The deputy may do all that the mayor could do in his official capacity, except as restricted by subsection 3. The application of this Act to county councils by the Local Government Act, 1888, is not to include this section. See section 75, subsection 16, paragraph 6, of that Act.]