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35.- A person elected to a corporate office shall not, until he Supplemental
and Ercephas made and subscribed before two members of the council, or tional Pro
visions. the town clerk, a declaration as in the Eighth Schedule, act in Declaration on
acceptance of the office except in administering that declaration.
[The effect of section 50 of the Act of 1835 is preserved in this clause. --At an election (under this Act] for the office of councillor of one of the wards of a borough, R. and P. were the only candidates. At the close of the poll P. objected that Ř. was disqualified for election by reason of his being an alderman of the borough, whose term of office had not expired, and P.claimed himself to be elected whatever might be the result of the poll. The returning officer counted the votes, and then stated to those present the number given to each candidate, the result of the poll being that R. had a majority. Having taken time to consider the objection, the returning officer on the following day issued a public notice, stating the number of votes given to each candidate, and the objection, and declaring that P. was duly elected. P. thereupon made and subscribed the declaration of acceptance of the office required by this section and attended meetings of the council. R. subsequently made and subscribed a similar declaration, and attended meetings of the council : Held, reversing the decision of the Queen's Bench Divi. sion (56 L.T. 434), making absolute a rule for a mandamus to compel the mayor and corporation of the borough to receive P.'s votes at their corporate meetings; (1.) that R.was not, by reason of his being an alderman,disqualified for election to the office of councillor, and that by accepting the latter office he vacated the former; (2.) that the returning officer had no power to decide whether R. was disqualified or not; (3.) that by stating at the close of the poll the number of votes given to each candidate, the returning officer had made a sufficient declaration, under sect. 2 of the Ballot Act, 1872, that R. was elected, and that the effect of that declaration was not altered by reason of the public notice issued on the following day under rules 45 & 46 of the rules in the first schedule to that Act ; and (4.) that the office of councillor was not de facto filled by P., so as to entitle him to hold it until dispossessed by an election petition or by quo warranto. Reg. v. Mayor, fc., of Bangor, 18 Q.B.D. 349. This decision of the Court of Appeal was subsequently affirmed by the House of Lords, 57 L.J. 313.) 36.-(1.) A person elected to a corporate office may at any time, Fine on resig.
& by writing signed by him and delivered to the town clerk, resign the office, on payment of the fine provided for non-acceptance thereof.
[See also comment upon subsections 1 and 2 of section 34, on preceding page. The resignation is completed by the delivery of the writing to the town clerk and the payment of the fine, and cannot afterwards, even with the assent of the corporation, be withdrawn.- Reg v. Corporation of Wigan, 14 Q.B.D, 908).
(2.) In any such case the council shall forth with declare the office to be vacant, and signify the same by notice in writing, signed by three members of the council and countersigned by the town clerk, and fixed on the town hall, and the office shall thereupon become vacant.
(3.) No person enabled by law to make an affirmation instead of taking an oath shall be liable to any fine for non-acceptance of office by reason of his refusal on conscientious grounds to take any oath or make any declaration required by this Act or to take on himself the duties of the office.
[The effect of section 8 of 6 & 7 Will. 4, c. 104 (1836) is preserved in this clause. See The Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, sec. 20); and The Supreme Court of Judicature Act, 1878 (36 & 37 Vict. c. 66)].
Supplemental and Excep- 37.- A person ceasing to hold a corporate office shall, unless tional Provisions. disqualified to hold the office, be re-eligible. Re-eligibility of office bolders. [The effect of sections 25 and 31 of the Act of 1835 is preserved in this clause). Mayor and 38,
The mayor and aldermen shall, during their respective
, Aldermen to
offices, continue to be members of the council, notwithstanding bers of council.
anything in this Act as to councillors going out of office at the end of three years.
[The effect of section 26 of the Act of 1835 is preserved in this clause). Avoidance of 39.-(1.) If the mayor, or an alderman or councilloroffice by bank. ruptcy or (a.) Is declared bankrupt, or compounds by deed with his
creditors, or makes an arrangement or composition with his creditors, under the Bankruptcy Act, 1869, by deed
or otherwise; or [The case of Aslatt v. Mayor and Corporation of Southampton, in the Chancery Division of the High Court of Justice (L.R., C.D. vol. 16, p. 143), was a motion made to restrain the defendants, the borough town council, from avoiding or declaring void the office of alderman of the borough held by the plaintiff, and from appointing or electing any successor to him and interfering with his rights and privileges as an alderman. The plaintiff in January submitted a proposition to his creditors for a composition on their debts, and this composition was accepted by a certain number of the creditors by a resolution and by a circular letter. The plaintiff did not execute any composition deed, and had not taken any proceedings under the Bankruptcy Act, 1869, for an arrangement or composition with his creditors. He had, however, executed a bill of sale in which he admitted, in cross-examination, that the consideration was stated to be the finding of money for the purposes of his composition. The defendants had not taken any step to avoid the office until the 4th inst., when, in consequence of the death of another alderman, the mayor called a meeting of the corporation to be held on the 8tb inst., at halfpast two, to declare the office of alderman held by the plaintiff void, and to elect another alderman in the place of the gentleman who was dead, and for other business. The grounds upon which the defendants contended that the office was vacant were by virtuo of the Municipal Corporations Act, 1835, s. 52, by which any alderman who shall
compound by deed with his creditors shall immediately become disqualified, and shall cease to hold the office of alderman, and the council shall forth with declare the office to be void and signify the same," as therein provided. By the Debtors Act, 1869, the disqualification is extended to any person who has been declared banke rupt, or arranged or compounded with his creditors under the lankruptcy Act, 1869, whether by deed or otherwise. For the defendants on the motion it was argued that the plaintiff had in effect “compounded by deed” with his creditors, and that his case was, at all events, within the mischief intended to be provented by the above disqualification. It was further argued that the Master of the Rolls had no jurisdiction to entertain the case, which should have been brought by some proceeding in the Queen's Bench Division. Jessel, M.R. said that the case was one of great importance, and he should have been glad if it had been possible to have had further time to consider the point. As the meeting had, however, been called for that day, he was compelled to decide it at oncs, and his decision must, to a great extent, be a final one under the circumstances. If any miscarriage did occur, the defendants were only to blame for not having brought the matter to an issue previously. In his opinion, what the plaintiff had done was not a “composition by deed” within the meaning of the Municipal Corporations Act, 1835, s. 52, and it could also not be said to be an arrangement or composition under the Bankruptcy Act, 1869. He was bound, as the sections were penal, to construe them strictly, and whatever he might think was the spirit of the Acts in question, technically the plaintiff was not liable to the penalties imposed thereby, and he had not therefore ceased to hold office, and the defendants were not justified in impeding him in the exercise of his duties. He was further of opinion that whatever power the old Court of Chancery might have had in a case like the present, he now had ample jurisdic
tion, under section 25 of the Judicature Act, 1973, to grant an injunction in all Supplemental cases for the protection of a legal right or the prevention of a threatened wrong, and Excepwhere it was just and convenient” so to do. He also thought that this action tional Proviwas not one of those sign to the Queen's Bench Division, and, even if it had sions. been, he still considered that he had jurisdiction to interfere where, as here, his interference was imperatively demanded, and where, if he refused to hear the application, it would, in effect, be a denial of justice. He therefore granted an injunction restraining the defendants from avoiding the office of alderman, and from interfering with the plaintiff in his duties and privileges thereof. By consent this injunction was made perpetual, with costs].
(6.) Is (except in case of illness) continuously absent from
the borough, being mayor, for more than two months,
(2.) In any such event the council shall forthwitht declare the office to be vacant, and signify the same by notice signed by three members of the council, and countersigned by the town clerk, and fixed on the town hall, and the office shall thereupon become vacant.
[These directions must be strictly followed. Office not vacant until the formalities be complied with: Reg. v. Mayor of Leeds (7 A. & E., 963); Reg.v. Mayor of Oxford (6 A. & E., 349)].
(3.) Where a person becomes so disqualified by being declared bankrupt, or compounding, or making an arrangement or composition, as aforesaid, the disqualification, as regards subsequent elections, shall, in case of bankruptcy, cease on his obtaining his order of discharge, and shall, in case of a compounding or composition as aforesaid, cease on payment of his debts in full, and shall, in case of an arrangement as aforesaid, cease on his obtaining his certificate of discharge.
(The foregoing subsections have been framed with reference to the case of Hardwick v. Brown (L. R., 8 C. P., 406) as follows:-B, a town councillor of Newcastle, made a composition with his creditors under s. 126 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), under which a resolution was come to for a composition of 3s. 6d. in the pound (secured) in satisfaction of B's debts, the first instalment of which was payable six months after registration of the confirming resolution. The registration took place on the 23rd of September. On the 4th of November, B placed his resignation of his office of councillor in the hands of the town clerk, and announced his resignation by advertisement on the 6th of November, and by the same advertisement offered himself for ro
* Extended to twelve months for county aldermen and councillors under the Local Government Act, 1888 (sec. 75, sub-sec. 14). See Appendix.
+"Forthwith " per Lord Campbell, C.J., “may have a different meaning, according as the act to be done is ministerial or judicial.” Costor v. Hetherington (28 L. J., N. S., M. C., 199). Ministerial, it is “ within a reasonable time "-judicial-—"apon appl cation being made."
Supplemental election. At the annual meeting of the town council on the 9th of November, and Excep- the above letter was read, and B's resignation was accepted by the council; and tional Provi- on the 18th (there having been no declaration by the council that the office was sions.
void) he was re-elected a town councillor. Upon a case stated for the opinion of the Court, pursuant to s. 15 of the Corrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vict. c. 40) :-Held (by Bovill, C.J. and Keating and Hotiyman, J.J.), that B, having by reason of his having compounded with his creditors ceased to hold the office of councillor, was incapable of resigning it, and the council not having pursued the course pointed out by s. 52 of the Muni. cipal Corporations Act, that the election was therefore void. Held, also, that B not having “paid his debts in full," he was not qualified for re-election under that section. A burgess, from the mere fact of being an uncertificated bankrupt, is not disqualified from being elected a councillor or alderman; although bankıuptcy during the term of office, would act as an immediate cause of in. capacity.-Rex v. Chitty 5 A. & E., 609.)].
(4.) Where a person becomes so disqualified by absence, he shall be liable to the same fine as for non-acceptance of office, recoverable summarily, but the disqualification shall, as regards subsequent elections, cease on his return.
[The effect of section 52 of the Act of 1835, section 21 of 32 & 33 Vict. c. 62, (1869) and generally 32 & 33 Vict. c. 71 (The Bankruptcy Act, 1869) is preserved by this clause. Subsection 4 is a necessary proviso in conjunction with the obligatory character of section 34 ; otherwise the acceptance of office or payment of the monetary penalty in default would be easily avoided by non-residence.)
Filling of casual Vacancies.
40.-(1.) On a casual vacancy in a corporate office, an election shall be held by the same persons and in the same manner as an election to fill an ordinary vacancy; and the person elected shall hold the office until the time when the person in whose place he is elected would regularly have gone out of office, and he shall then go out of office.
[The case of Connell v. Mayor and Corporation of Newcastle, in the Queen's Bench Division of the High Court of Justice, is interesting as defining the duty of a corporation in the event of a vacancy in the office of alderman through a previous invalid election. The petitioner moved for a rule for a mandamus calling upon the defendants to proceed to the election of an alderman to fill up the vacancy in the number of aldermen in the corporation. It appeared that on the 9th of November the corporation elected Mr. (now Sir) Lowthian Bell to fill the vacancy; but it was subsequently found that Mr. Belí, although living close to Newcastle, did not possess the necessary qualification. The election was consequently invalid. The corporation did not oppose the application for a rule, or that it should be made absolute. The petitioner therein applied that the rule should be made absolute with costs, seeing that the matter had arisen out of the mistake of the corporation. The corporation resisted the application to saddle them with the costs, as, in point of fact, nobody was to blame; but, acting on a suggestion from the Bench (Field and Manisty, JJ.) that the prosecutor being a private person the costs ought to be paid by the public body, they consented to the rule being made absolute with costs. Rule made absolute accordingly).
(2.) In case of more than one casual vacancy in the office of councillor being filled at the same election, the councillor elected by the smallest number of votes shall be deemed to be
elected in the place of him who would regularly have first gone Supplemeniul
and Excepout of office, and the councillor elected by the next smallest number of votes shall be deemed to be elected in the place of sions. him who would regularly have next gone out of office, and so with respect to the others; and if there has not been a contested election, or if any doubt arises, the order of rotation shall be determined by the council.
(3.) Non-acceptance of office by a person elected creates a
[The effect of sections 27, 47, 49, and 51 of the Act of 1835, and section 11 of 7 Will. 4 and 1 Vict. c. 78 (1837), is preserved in this clause).
41.-(1.) If any person acts in a corporate office without Penalty on
unqualified having made the declaration by this Act required, or without person acting being qualified at the time of making the declaration, or after ceasing to be qualified, or after becoming disqualified, he sball for each offence be liable to a fine not exceeding fifty pounds, recoverable by action.*
(2.) A person being in fact enrolled in the burgess roll shall not be liable to a fine for acting in a corporate office on the ground only that he was not entitled to be enrolled therein.
(The effect of section 53 of the Act of 1835 and section 7 of 6 & 7 Will. 4, c. 105 (1836), is preserved in this clause. Subsection 2 provides for a double disqualification that therein defined not being sufficient of itself for liability to the fine to attach).
42.-(1.) The acts and proceedings of a person in possession Validity of acts of a corporate office, and acting therein, shall, notwithstanding standing dis
qualification, his disqualification or want of qualification, be as valid and &c. effectual as if he had been qualified.
[The Corrupt Practices Act, 35 & 36 Vict. c. 60, s. 23 (1872), provides that acts of all persons declared not elected under the provisions of that statute shall be valid, till the decision that they are not elected has been duly certified to the town clerk].
(2.) An election of a person to a corporate office shall not be liable to be questioned by reason of a defect in the title, or want of title, of the person before whom the election was had, if that person was then in actual possession of, or acting in, the office giving the right to preside at the election.
* See Part XII. as to Legal Proceedings.