were not appointed by the council sitting as one or other of the three large com- Meetings and mittees before referred to, but by the council sitting as such, and that no special Proceedings of instructions were laid down as to how or to what body reports should be made. Council; The following answer was returned:-"(1.) The practice of appointing the entire Committees. body of the council is not opposed to the law and although it is not a practice observed elsewhere to the extent that obtains in S, still it is a fact that most corporations appoint the whole body of the council to act upon some particular committee. Many people may say that it is farcical for a committee and a council composed of exactly the same members to exist side by side, but it is not so because an opposition in committee (whether successful or unsuccessful) can be repeated when the committee is constituted as the council without reference to what has occurred in committee. Say, for example, that a council of 12 con. stitute themselves a committee. When sitting in committee a subject is discussed and divided upon. The minority in the interval between the holding of the committee meeting and the meeting of the council (however long or short) may obtain information and learn facts, which, if known in committee, might have influenced some on the opposite side to vote with them. The opposition might then be renewed when sitting as a council, and if even they are not armed with fresh facts and arguments minorities are not prevented standing upon their strict rights and renewing the opposition in council. (2.) It is irregular for one committee to report to another, unless the committee reporting has been appointed by the committee to which it reports, or the council has specially instructed it to so report. If say, a committee is appointed by the council-sitting as the councilthen the committee must report to the council unless it has a special instruction to report to some other committee. A committee, unless constituted as a subcommittee, so reporting, affords opportunity for an opposition being twice repeated, or in other words, for a subject to be fought three times-viz. (1) in the committee which reports, (2) in the committee reported to, and (3) in the council." The fact of a committee being composed of the whole of the members of the council does not relieve it from the duty of reporting its action for approval to the council as such.] (3.) A member of the council shall not vote or take part in the discussion of any matter before the council, or a committee, in which he has, directly or indirectly, by himself or by his partner, any pecuniary interest. [See paragraphs a, b, c, d, and e, subsection 2, and section 12 of this Act for exceptions to disqualification, which also hold good under this subsection]. (4.) No act or proceeding of the council, or of a committee, shall be questioned on account of any vacancy in their body. [The effect of this subsection is to prevent the stoppage of any council or committee business by reason of the occurrence of a casual vacancy from whatever cause arising]. (5.) A minute of proceedings at a meeting of the council, or of a committee, signed at the same or the next ensuing meeting, by the mayor, or by a member of the council, or of the committee, describing himself as, or appearing to be, chairman of the meeting at which the minute is signed, shall be received in evidence without further proof. [This subsection (with paragraph 12 of the Second Schedule) effects a much needed settlement of the rules which ought and should guide the keeping and confirmation of the minutes of proceedings. It assimilates the procedure to that now generally observed by all regularly constituted bodies, namely, that the recorded proceedings of one meeting shall be submitted to and signed by the chairman of the next subsequent meeting. Previous to the passing of this Act the usage varied considerably. Some councils followed the course which is laid down in this subsection quite regardless of the fact that by section 69 of the Act of 1835, the *Except in the case of a watch committee limited under thisAct to one-third of the council. Meetings and signature of any other person than that of the actual chairman of the meeting to Proceedings of which the minutes referred would be illegal. Other councils deemed that the Council; Bye-laws. Power of coun- law had been complied with by the chairman of any particular meeting signing the minutes of that meeting whenever presented to him for that purpose; whilst some so literally observed the directions "shall be signed by the mayor, alderman, or councillor presiding at such meeting" as to require the minutes to be fairly transcribed then and there, and signed before the chairman vacated his seat. In the event of voluminous correspondence or detailed particulars being ordered to be entered on the minutes, this last method often involved a tedious interval between the formal break up of the council and the release of the chairman from his position. It would seem that of the three methods referred to, the last named was undoubtedly a rigid adherence to the directions of the statute, whilst the first would be positively irregular, and the second open to doubt. By this subsection any one of these three courses would be correct]. (6.) Until the contrary is proved, every meeting of the council, or of a committee, in respect of the proceedings whereof a minute has been so made, shall be deemed to have been duly convened and held, and all the members of the meeting shall be deemed to have been duly qualified; and where the proceedings are proceedings of a committee, the committee shall be deemed to have been duly constituted, and to have had power to deal with the matters referred to in the minutes. [The effect of sections 69 & 70 of the Act of 1835, section 22 of 7 Will 4 & 1 Vict. c. 78 (1837), section 2 of 5 & 6 Vict. c. 104 (1812), and section 3 of 36 & 37 Vict. c. 33 (1873), is preserved in this clause. The "proof to the contrary" required by subsection 6 would have to be raised by writ of quo warranto in the High Court.-See judgment of Coleridge J., Reg. v. Thomas, 8, A. & E., 183]. Bye-laws. 23.-(1.) The council may, from time to time, make such bye-laws as to them seem meet for the good rule and government of the borough, and for prevention and suppression of nuisances not already punishable in a summary manner by virtue of any Act in force throughout the borough, and may thereby appoint such fines, not exceeding in any case five pounds, as they deem necessary for the prevention and suppression of offences against the same. (2.) Such a bye-law shall not be made unless at least two thirds of the whole number of the council are present. (3.) Such a bye-law shall not come into force until the expiration of forty days after a copy thereof has been fixed on the town hall. (4.) Such a bye-law shall not come into force until the expiration of forty days after a copy thereof, sealed with the corporate seal, has been sent to the Secretary of State; and if within those forty days the Queen, with the advice of Her Privy Council, disallows the bye-law or part thereof, the bye-law or part dis allowed shall not come into force; but it shall be lawful for the Bye-laws. Queen, at any time within those forty days, to enlarge the time within which the bye-law shall not come into force, and in that case the bye-law shall not come into force until after the expiration of that enlarged time. (5.) Any offence against such a bye-law may be prosecuted summarily. (6.) Nothing in this section shall interfere with the operation of section one hundred and eighty-seven of the Public Health Act, 1875; and that section shall have effect as if this section were therein referred to, instead of section ninety of the Municipal Corporations Act, 1835; but nothing in the Public Health Act, 1875, shall be construed as having restricted the meaning or scope of the Municipal Corporations Act, 1835, or as restricting the meaning or scope of this section, with respect to prevention or suppression of nuisances. [The effect of sections 90 and 91 of the Act of 1835, and section 187 of 38 & 39 Vict. c. 55 (1875) is preserved in this clause. This power of making bye-laws is one of the most important entrusted to the council. It is settled by decided cases that they must be reasonable and not inconsistent with any statute or with the general principles of the law of the land: that a bye-law can be made for the regulation of any trade carried on within the borough, but not in restraint of it (see Everett v. Grapes, 3 L.T., N.S., 669); that this power of regulation still remains, notwithstanding section 14 of the Act of 1835 abolished all exclusive rights of trading; and that the validity of a bye-law may be tested and tried in an action brought to recover the penalty, or, if the mode of enforcing the penalty be by distress, by an action of trespass. Within the limits of its operation, bye-laws have the same force as Acts of Parliament. Hopkins v. Mayor of Swansea (4 M. & W. 621). A bye-law made by a council, under this section (in 1886), provided that "no person, not being a member of Her Majesty's army or auxiliary forces, acting under the orders of his commanding officer," should sound or play upon any musical instrument in any of the streets of the borough on Sunday: Held that the bye-law was unreasonable and ultra vires, and therefore void. Johnson v. Mayor, &c., of Croydon, 16 Q.B.D. 708. A bye-law (made in 1887), making parents liable to a penalty if they suffered a child to sell articles in the street after a certain hour was also held to be in excess of the powers here given. Macdonald v. Lochrane, 51 J.P. 691. bye-laws. 24. The production of a written copy of a bye-law made by Evidence of the council under this Act, or under any former or present or future general or local Act of Parliament, if authenticated by the corporate seal shall, until the contrary is proved, be sufficient evidence of the due making and existence of the bye-law, and, if it is so stated in the copy, of the bye-law having been approved and confirmed by the authority whose approval or confirmation is required to the making or before the enforcing of the bye-law. [The effect of section 2 of 36 & 37 Vict. c. 33 (1873) is preserved in this clause]. Accounts and The borough Half-yearly accounts of treasurer. Audit and publicatio of treasurer's accounts. Returns to Local Government Board. Accounts aud Audit. 25.—(1.) There shall be three borough auditors, two elected by the burgesses, called elective auditors, and one appointed by the mayor, called mayor's auditor. (2). An elective auditor must be qualified to be a councillor, but may not be a member of the council or the town clerk or the treasurer. (3.) The mayor's auditor must be a member of the council. (4.) The term of office of each auditor shall be one year. (5.) The appointment of the mayor's auditor shall be made on the ordinary day of election of the elective auditors. (6.) On a casual vacancy in his office an appointment to fill it shall be made within ten days after the occurrence of the vacancy. [The effect of sections 37 and 93 of the Act of 1835 and section 1 of 40 & 41 Vict. c. 66 (1871), is preserved in this clause. It will be noticed that the terms "mayor's auditor" and "elective auditor" are new designations.] 26.-The treasurer shall make up his accounts half-yearly to such dates as the council, with the approval of the Local Government Board, from time to time appoint; and, subject to any such. appointment, to the dates in use at the commencement of this Act, [The effect of section 93 of the Act of 1835 and section 1 of 40 & 41 Vict., c. 66 (1877) is preserved in this clause. The dates generally approved by the Local Government Board are the 29th of September and the 25th of March, the latter date being that particularly named in the Local Taxation Returns Act, 1877, for the making of annual returns to the Local Government Board.] 27-(1.) The treasurer shall within one month from the date to which he is required to make up his accounts in each half year, submit them, with the necessary vouchers and papers, to the borough auditors, and they shall audit them. (2.) After the audit of the accounts for the second half of each financial year the treasurer shall print a full abstract of his accounts for that year. [The effect of section 93 of the Act of 1835 is preserved in this clause.] 28. (1.) The town clerk shall make a return to the Local Government Board of the receipts and expenditure of the municipal corporation for each financial year. (2.) The return shall be made for the financial year ending on the twenty-fitth of March,* or on such other day as the Local The uniform date for making up these returns will be-not later than the year 1891-the 31st of March in each year. See section 73 of the Local Government (England and Wales) Act, 1888. Government Board, on the application of the council, from time Accounts and to time prescribe. (3.) The return shall be in such form and contain such particulars as the Local Government Board from time to time direct. (4.) The return shall be sent to the Local Government Board within one month after the completion of the audit for the second half of each financial year. (5.) If the town clerk fails to make any return required under this section, he shall for each offence be liable to a fine not exceeding twenty pounds to be recovered by action on behalf of the Crown in the High Court. (6.) The Local Government Board shall in each year prepare an abstract of the returns made in pursuance of this section, under general heads, and it shall be laid before both Houses of Parliament. [The effect of section 10 of 6 & 7 Will. 4, c. 104 (1836), section 43 of 7 Will 4 and 1 Vict. c. 78 (1837), and 23 & 24 Vict. c. 51 (1860), and 40 & 41 Vict. c. 66 (1870), is preserved in this clause. The general heads under which returns are now required by the Local Government Board are as follows:- Receipts. From borough rate; other rates; tolls and dues; rents; fines on renewal of leases; allowances from Her Majesty's Treasury for pay and clothing of police, prosecution, &c., of prisoners, and maintenance of borough lunatics; sale of property; loans effected on security of rates or property; and all other sources of income not included in foregoing. Expenditure. Public works, maintenance, and repairs; cost of police; cost of prosecutions, maintenance of prisoners; cost of lunatics chargeable to borough; contribution to school boards; loans repaid (with interest) during year; salaries and collectors' poundage; sinking fund; and all other charges not included in foregoing. Also a return of amount of loans outstanding at close of account.] Revising Assessors.* Audit. Revising * assessors in 29.-(1.) In every borough whereof no part of the area is coextensive with or included in the area of a parliamentary borough,* there shall be two revising assessors elected by the burgesses. (2.) Every person shall be eligible who is qualified to be a councillor and is not a member of the council or the town clerk or treasurer. (3.) The term of office of each revising assessor shall be one year. *The abolition of the office of assessor in municipal boroughs inc'used in the area of a rarliamentary Iorough was effected by section 20 of 41 & 42 Vict. c. 26 (1878) as follows: After the commencement of this Act assessors shall not be elected in any municipal borough which as regards the whole or part of its area is co-extensive with or included in the area of a parliamentary borough, and any assessors elected in any such municipal borough before the commencement of this Act shall cease to hold office upon the commencement of this Act." The County Electors Act, 1888 (section 4, subsection 1, paragraph a), directed the foregoing Act and the Registration Act, 1885 (section 6, subsection 2, to apply as far as circumstances would admit to all boroughs excluded therefrom, and revising assessors are not to be elected such boroughs. The office is therefore impliedly abolished for all practical purposes. See also Appendix. |