Huddersfield Chronicle (12/Sep/1868) - The Municipal Corporation: Its Working and Machinery
THE MUNICIPAL CORPORATION: ITS WORKING AND MACHINERY.
ARTICLE VI.
Having described the nature and constitution of the machinery of a Municipal Corporation, we have now to examine and describe, somewhat in detail, the modes and manner of its working. To this end we now treat—
OF THE POWERS OF THE COUNCIL.
Several of the powers and duties of the Council have already been pointed out incidentally in the course of these articles.
Thus it has been seen that they are to have all the authority and power of the old Corporations; they are to elect the Aldermen and the Mayor; to order the payment of the Overseers' expenses in making out the Burgess Lists; and to make bye-laws for the good rule and government of the Borough, for the prevention and suppression of nuisances, and for the appointment of fines for offences.
They have also the power to appoint the Town Clerk, Treasurer, and other Corporate officers, and to make orders for the payment of money by the Treasurer, and for the officers to account from time to time.
They may also appoint, out of their own body, from time to time, either General or Special Committees, for any purposes which they may consider would be better regulated and managed by such means; and they are expressly directed to appoint a Watch Committee, of which the Mayor is to be a member.
Where a local Act had created a Court of Requests in a Borough, and the Corporation, together with other persons mentioned in the Act, were made the Commissioners, but the Corporation alone had the power of appointing the Clerk of the Court, it was held that they were solely Trustees or Commissioners for this purpose, and therefore that the power of appointing the Clerk had devolved upon the Council.
The Council are to act as Trustees (except in cases of charitable trusts), where the former Corporations were ex—officio the sole Trustees.
Tolls granted by Charter to a Corporation for the repair of the roads and bridges within the Borough are gifts for charitable purposes; but property appropriated by a Corporation to the maintenance of lecturers to preach before the Corporation is not a charitable trust.
Where, under any local Acts, powers were formerly exercised by Justices in Quarter Sessions, not relating to the business of a Court of Criminal or Civil Judicature, such powers are now vested in the Council.
A Court of Requests having been established by a local Act, which gave the Justices at Quarter Sessions power to reduce the fees to be paid to the officers of such Court, it was held that the regulation of such fees was a matter relating to the business of a Court of Civil Judicature, an:, therefore, that the Town Council had no authority to reduce the fees.
In most Boroughs there were Trustees appointed by local Acts, for paving, lighting, cleansing, watching, supplying with water, or otherwise regulating the Borough. Such Trustees may now transfer their powers to the Council.
- 5 and 6 W. IV., c. 76, s. 75, recites that "it may be expedient that the powers now vested in the Trustees appointed under sundry Acts of Parliament for paving, lighting, cleansing, watching, regulating, supplying with water, and improving certain boroughs, or certain parts thereof, should be transferred to and vested in the councils of such boroughs respectively;" and enacts " that the Trustees appointed by virtue of any such Act of Parliament as last aforesaid, wherein the Trustees, or the persons whose Trustees they may be, are not beneficially interested, may, if it shall seem to them expedient, at a meeting to be called for that purpose, transfer in writing under their hands and seals all the powers vested in them as such Trustees by any such Act or Acts of Parliament as aforesaid to the said body corporate of such borough; and the said body corporate of such borough shall henceforth be Trustees for executing, by the council of such borough, the several powers and provisions of any such Act or Acts of Parliament, and the members of the council shall have the same powers and be subject to the same duties as if their names had been originally inserted in such Act or Acts, or as if they had been elected under the provisions of any such Act or Acts as such Trustees respectively."
It is in virtue of this clause that the Huddersfield Improvement Commissioners are transferring their powers to the new body.
The Council have the power of redeeming out of the Borough Fund, any debts that may have been lawfully contracted by the Corporation previous to the passing of the Municipal Corporation Act; or of paying money that may have been subsequently borrowed for that purpose, and of executing new securities for the same; and, if after the payment of the salaries of the Corporate Officers, the expenses incident to elections, and the maintenance of the Gaol, House of Correction (if any), Corporate Buildings, and other such matters, there is any surplus, the Council are to apply the same for the public benefit of the inhabitants and the improvement of the Borough.
Under this general power they are not entitled to pay the expenses of legal. proceedings, when they relate to the right or misconduct of individual members of the Corporation; but they may do so, in defending general Corporate rights.
The following have been held to be cases in which the Corporation were not justified in paying the expenses out of the surplus Borough Fund:— Costs of opposing a rule for a quo warranto against a party duly elected as Councillor; or for a criminal information against an Alderman for alleged misconduct; costs of resisting a mandamus directed to the Corporation for the purpose of trying which of two Councillors was legally elected; of defending an indictment against Borough Constables for alleged misconduct; and of presenting a petition to Chancery with respect to the appointment of Charity Trustees.
In the following cases it has been held the expenses might be paid out of the surplus fund: Costs of prosecuting parties for a riot and assault upon the Presiding Officer engaged in the Revision of the Burgess Lists; and of resisting, though ineffectually, a mandamus to assess compensation to an officer dismissed by the Town Council for alleged misconduct.
An injunction has been granted to restrain a Corporation from defraying the expenses of a bill before Parliament for improvements in the Borough, where it was alleged there was no surplus of the Borough Fund.
The Council are required to hold Quarterly Meetings, for the transaction of general business, no notice being required of the business to be transacted on those days.
Such quarterly meetings may be adjourned.
The Mayor has power to call an extraordinary meeting at any time he may think proper, by causing a notice, signed by himself, to be fixed on the Town Hall, three clear days before the intended meeting, stating the time and place thereof.
It does not seem that the business to be transacted is required to be stated in the notice; but a summons to attend the Council, signed by the Town Clerk, must be left at the place of abode of every Member of the Council three clear days before the meeting; and the summons must specify the business proposed to be transacted at the meeting.
If the meeting is an adjourned quarterly meeting, it is necessary that any business proposed to be transacted, which was not actually entered upon at the general quarterly meeting, should be specified, but not otherwise.
If upon receiving a requisition, signed by five members of the Council, the Mayor refuses to call a meeting, the same five members may do so, upon giving a notice signed by themselves, instead of by the Mayor; and in that case the notice must state the business proposed to be transacted. Summonses must also be given as in the case of the meeting called by the Mayor.
To constitute a valid meeting there must be present not less than one-third part of the number of the whole Council.
The Mayor, if present, is to preside; in his absence the Councillors are to choose a Chairman from the Aldermen present, or if there is no Alderman present, then from the other Councillors.
All questions brought before the meeting, including that of adjournment, and all acts to be done by the Council, are to be decided by the majority of the members present.
The Chairman of the meeting has a single vote, as a member; but in case of an equality of votes, he has a second or casting vote.
Minutes of the proceedings are to be drawn up and signed by the Chairman of the meeting, and strictly speaking, these minutes ought to be drawn up and entered at the time; but it seems it might be sufficient if they were drawn up at the time, and signed afterwards.
These minutes are to be open to the inspection of any Burgess, at all reasonable times, upon the payment of one shilling, and he is also at liberty to copy or make extracts from them.
Where a Borough has a separate Court of Quarter Sessions, the Council are to appoint a Coroner, who is not to be an Alderman or Councillor. Such office is to be held during good behaviour; and in case of a vacancy is to be filled up within ten days afterwards.
Upon the petition of the Council of a Borough, the Crown may grant a Court of Quarter Sessions in such Borough; and, in such case, the Council are to appoint a Coroner within ten days after such grant.
Where the Council of a Borough having so petitioned the Crown, and received a communication from the Secretary of State, stating that the Crown had made the grant, appointed a Coroner within ten days of the receipt of the communication, but before the grant had actually passed the Great Seal; and the Coroner assumed and exercised the office, and was repeatedly recognised in that capacity by the Town Council, both before and within ten days after the actual grant had been received by them; it was held that even though the original appointment might have been informal, as having been made too soon, yet it was made valid by the subsequent recognition.
The Town Council have also certain powers given to them in connection with the Watch Committee as to the payment of extra expenses incurred by constables. These will be specified presently.
They have also power to levy a Watch Rate not exceeding sixpence in the pound.
With regard to lighting the Borough, the Council have power to order any parts thereof, which are not within any local Act for regulating the lighting of the Borough, to be included in such Act; but the rate for lighting such parts is not to exceed the average expense in the pound of lighting the other parts of the Borough.
They may also assume the powers of Inspectors, under the Parochial Lighting Act, for lighting any part of the Borough not within a local Act.
And then, a Corporation must have a Corporate Seal; so here is an opportunity for some one to treat artistically "the three pigs" that constitute the traditional "arms of Huddersfield." Probably the Council will see it fitting to entrust this matter to the antiquarian heraldist who has "found" and designed seals and arms for most, if not, indeed, for all (as we believe) the new Corporate Boroughs of Yorkshire. The necessity for a Corporate Seal will be seen from what follows:—
OF THE CORPORATE SEAL: AND OF CORPORATE ACTS THAT MUST BE DONE BY DEED.
An incident of a Corporation is the having and using a common Seal, by which the body Corporate is considered to express their aggregate intention, as they cannot do so by any personal act or oral discourse. The individual members, indeed, may manifest their private assent to any act by words, or by signing their names, but that will not bind the Corporation; it is only the affixing of the Seal which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole.
It is not necessary that there should be any clause in the Charter of Incorporation empowering them to use a Seal, as it is a necessary incident to the existence of a Corporation that it should have one; and as soon as the Corporation is established, the body may make and use what Seal they will.
It is laid down that a Corporation may do acts upon record without their common Seal, but not acts in pais — that is to say, that although in all matters which are not of record, any act, in order to bind the Corporate body, must be witnessed by the affixing of their common Seal, yet a Corporation will be bound by any admission made upon record, as in the pleadings in the course of a cause, although such admission is not under their Seal.
Generally speaking, when the Corporate Seal appears affixed to a document it will be presumed to have been regularly so affixed; and the party who impugns the legality of the affixing, has the burden cast upon him of showing in what manner the annexation was illegal or irregular.
When the Corporate Seal has been affixed to an instrument without the authority of the Corporate Body, it is invalid, and may be repudiated by them.
The due affixing of the Corporate Seal is sufficient to give validity to an instrument without a formal delivery. But when the Corporate Seal was regularly attached to a conveyance, but at the same time the Clerk of the Corporation was ordered to retain the conveyance in his hands until some accounts were settled with the purchasers, it was held that the conveyance did not pass the estate.
It appears that if a regular Corporate resolution has been passed for granting an interest in the Corporate property, and upon the faith of it expenditure has been incurred, the Court of Chancery will compel the Corporation to make a legal grant in pursuance of the resolution, although it is not under the Corporate Seal.
The annexation of the Corporate Seal being necessary for the purpose of expressing the assent by the Corporate body to any act or thing, it follows that any Corporate act, or at least any act of any importance, must be by deed.
Thus a Corporation could not, even before the Statute of Frauds, grant or surrender a lease without deed; yet they make such surrender by operation of law, as by accepting a new lease.
So, the appointment of a person to do any act which concerns the real property of the Corporation, or by which their rights are to be asserted, must be by deed; such, for example, as the appointment of an Attorney to make or to take livery of seisin, or to conduct our appear in a suit, or to manage the affairs of the Corporation; and an Attorney not appointed under Seal cannot recover for business done, although the Council of the Borough had passed a resolution directing that the business should be done by him, and was cognisant of its progress.
But an attorney to a Corporation may be made in a Court of Record, without any other writing than the record itself, because the Corporation would be stopped by the record from repudiating their own acts. So the Corporation of London, who by custom appoint an attorney every year by warrant not under seal, are stopped by record from saying that his act is not their act.
A Corporation may prove a debt under a fiat at Bankruptcy, by an affidavit of a person authorised by a general power of attorney; and they may vote in the choice of assignees by a person authorised thereto by a special power of attorney, such power of attorney being under the Corporate Seal.
A presentation of a Clerk to a living by a Corporation must be by deed.
A Corporation cannot command their bailiff to enter into land of their own leasing for years, for a condition broken, without deed.
Nor can they, without deed, appoint a person to seize goods as forfeited to their use.
Generally speaking, the appointment of all subordinate Corporate Officers, such as Bailiffs, &c., must be by deed; but when once appointed, they may perform any act incident to the nature of their office, without any special commandment by deed or otherwise.
And an appointment by deed is not necessary in cases where the acts to be performed are of daily occurrence, and too insignificant to be worth the trouble of affixing the Corporate Seal; such as the employment of a butler.
So, where the act to be done requires to be executed immediately; as where cattle are to be distrained damage feasant, which might escape before the formality of executing a deed could be gone through; in such a case the verbal authority of the Mayor would be sufficient.
It is said that it is only in cases of necessity, occasioned by the hurry of the proceedings, that such a course can be pursued; yet it has been decided that a Corporation may appoint a bailiff to distrain without deed, because the distress vests no interest in them.
It has been seen that a Corporation cannot grant a lease without deed; nor can they make any contract except under Seal. Thus they cannot enter into a contract to pay a sum of money out of the Corporate funds, for making improvements within the Borough, except under the common Seal; and it seems doubtful whether they can borrow money except under Seal.
But where a contract has been executed, the law will imply a promise, and a deed under Seal is not necessary; they may therefore sue a party in assumpsit for the use and occupation of lands belonging to them.
So, where the Mayor of a Borough had ordered weights and measures, and when supplied, they were examined at a full meeting of the Corporation, this was held to be such a recognition of the contract as would make the Corporation liable to pay for them, although there was no order for them under the Common Seal; and that the fact of the Mayor having been afterwards ousted from office by a judgment of the Court of King‘s Bench made no difference.
So, where an indenture was entered into between A. B. and C. Bailiffs, and D. E. and F. Aldermen, with the assent of the Burgesses of the Borough of ———— of the one part, and J. S. of the other part, whereby the said Bailiffs, Aldermen, and Burgesses demised lands to J. S. for years, to be holden of the said Bailiffs, Aldermen, and Burgesses, and the deed was executed by A. B. and C; D. E. and F., but not sealed with the Corporation Seal; and J. S. had paid rent to the Bailiffs, as the Chief Officers of the Borough; it was held that their servant might make cognisance for taking a distress under a demise by the Corporation, notwithstanding a notice had been given by the Aldermen (one of whom was a party to the indenture) to pay the rent to them; for the payment of rent to the Bailiffs, admitted a tenancy from year to year under the Corporation.
But an agreement not under Seal by a Corporation with one of its officers, for an increase of the salary of an office retained by him, as a compensation for the loss of another office of which he was deprived under the Municipal Corporation Act, though upon an executed consideration, is not binding upon the Corporation.
We come next to treat
OF THE POWER TO MAKE BYE-LAWS.
Another incident to a Corporation which is included by law in the very act of Incorporation, is the power to make Bye-laws, or private statutes for the government of the whole body; and these laws are binding upon the members, unless they are inconsistent with, or contrary to, the law of the land, or the provisions of the Municipal Corporation Act, or the provisions of the Charter of Incorporation.
Where the power of making Bye-laws is in the body at large, they might, at common law, delegate their right to a select body, who thus become the representatives of the whole community. If, however, the Charter gave to a select body a power to make Bye-laws touching certain matters therein specified, that did not take away from the body at large their incidental power to make Bye-laws touching other matters not specified in the Charter.
But since the passing of the Municipal Corporation Act, Bye-laws that concern the government of the Borough, or the prevention or suppression of nuisances under the penalty of fines, can only be made by the Council of the Borough, or at least a majority of two thirds. A copy of such laws must be forwarded to the Secretary of State, and affixed to the Town Hall or some other public place, forty days before they acquire any force. But such Bye-laws, or any part thereof, shall not come into operation if within that period the Privy Council shall disallow the same.
By section 99, the Crown is empowered to appoint Police Magistrates within the Borough, when the Council shall have made a Bye-law fixing the amount of salary for that purpose.
Bye-laws may be made generally for the regulation of the internal affairs of a Corporation; the conduct of its members; the reasonable exercise of a right, or the mode by which a person is to be admitted thereto, where he has an inchoate title; but they cannot take away a right, or impose any unreasonable restraint in the exercise thereof.
In the city of York, which was Incorporated before the time of memory, there had been a Court from very ancient times, held first before the Mayor and Bailiffs, and after a Charter of Richard II., before the Mayor and Sheriffs. By a Bye-law made in the 3rd and 4th Phil. and Mary, by a select body of the Corporation, who had immemorially made rules and regulations as to the practice of the Court, and who had at their discretion selected the persons admitted to practice as Attornies there, it was ordered, that thenceforth there should be no more than four persons admitted to be Attornies of the Sheriff‘s Court; and from that time it did not appear that any more than that number had ever been allowed to practice: it was held that the Bye-law was reasonable, and that the usage limiting the number of Attornies to four was sufficiently ancient to satisfy the statute 2 Geo. II., c. 23, s. 11.
In the year 1762 an Act of Parliament passed for dividing and enclosing two pieces of open land in the Borough of S., over which the Corporation of that Borough had immemorially exercised the sole right of pasturage, and enacted that they should be divided between and allotted to the Lord of the Manor and the Corporation in certain shares; and that the Corporation should have power from time to time to make leases of the allotments so vested in them, for such terms, and with such covenants and agreements as the Burgesses in Common Hall assembled should think proper. On the 1st of April, in the same year, the Burgesses made a "rule, order, and ordinance," whereby, after reciting that they were of opinion that the most. beneficial mode for the Corporation of enzlosing the lands would be to grant leases of them for long terms to such Burgesses as were willing to take the same, under covenants to enclose them, it was ordered that no lease should be made to one Burgess in the same lease of more than fifty, or less than five acres; "and it being their desire and opinion, that every Burgess residing within the Borough should receive a benefit from the said enclosure," it was further ordered that certain annual sums out of the rents arising from the inclosure, should be paid and distributed yearly on every 2nd November among the twelve senior Burgesses residing within the Borough; and that no Burgess who should take a lease should be entitled to receive any of such money. It was held that this ordinance was a valid Bye-law.
There also exist in some Boroughs certain customs which may be presumed to have originated in Bye laws, as they can only exist in prescriptive Corporations; such customs are not, however, in general much favoured, and the Courts require them to be incontrovertibly proved.
The customs of the city of London are not proved in the ordinary way, but are certified to the Court by the Recorder of the city; and where a custom has been so certified, that custom is judicially noticed by the same Court ever after; but other Courts of Record, to which it has not been certified, do not notice it.
Before the passing of the Municipal Corporation Act, Bye—laws in restrains of trade wore considered baud, unless they were supported by a custom in the Borough, when they would be upheld. But a Bye-law to support a custom giving a penalty to any but the Corporation, has been held bad. So also has a Bye-law to oblige a person who had a right to be free of a city to take up his freedom in some particular company. So also has a Bye-law founded on & custom to include foreigners, and authorising a distress for a penalty in case of a breach of the Bye-law, without a previous demand or refusal of such penalty.
And now all Bye-laws and customs prohibiting persons other than freemen, &c., from carrying on trade within a Borough, are abolished by the Municipal Corporation Act.
A Corporation, however, may regulate the manner of carrying on a trade within the Borough, so far as to prevent monopoly, or the sale of unfit commodities, or to insure the proper conduct of those who trade within the Borough, or to protect the safety or health of the public.
On this principle, a Bye-law to prohibit gunpowder from remaining within a harbour for more than twenty-four hours, has been held good; so a Bye-law has been upheld which prohibited the slaughter of any animal within the walls of a city.
It has been seen that a Bye-law cannot be made to take away an existing right, such as that of a freeman; or to incur a forfeiture of goods, unless such power is expressly given. But a Corporation may make Bye-laws for the amotion of any officer for just cause.
The proper causes of amotion will be considered hereafter.
It has been laid down as a general rule that any Bye-law that is unreasonable, or unjust, or uncertain, is bad.
Thus a Bye-law that if any person should be elected to a certain office in the Corporation, and should refuse to undertake the office, he should be subject to a certain fine, has been held bad — as such a Bye-law would extend to persons who were not members of the Corporation.
So a Bye-law inflicting imprisonment as a penalty is invalid.
But a Bye-law imposing a penalty of £5 to the use of the Corporation, "or less at the discretion and pleasure" of the Corporation, is not bad for uncertainty in the amount of the penalty,
A Bye-law which provides that no person shall erect any booth, or place any caravan, for the purpose of any show or public entertainment in any public place within the Borough, without the licence of the Mayor, and that any such license given at any other time than fair time should be revoked by the Mayor, if three inhabitant householders, residing within 300 yards of the place for which it was granted, should memorialise the Mayor to revoke it, was held to be unreasonable and bad.
A Bye-law may be good in part and bad in part; but that can only be so where the two parts are entire and distinct from each other; thus, if a Bye-law consists of several distinct and independent provisions, although one or more of these may be void, yet the rest of the Bye-law may be valid.
But if a Bye-law be entire, and one part be void, it is void altogether. Thus if a Bye-law, instead of being limited to those within the jurisdiction of the Corporation, professes to extend to strangers also, it is void not only as to the latter, but also to the Members of the Corporation,
Any existing Bye-law may be repealed by the Corporate Body, but it must be done by a new Bye-law made for that purpose, which, like every other Bye-law, must now be submitted to the Secretary of State under the provisions of the 90th section of the Municipal Corporation Act.
Offences against any Bye-law made by virtue of that Act, are punishable by summary conviction before a magistrate. The prosecution for any such offence must be commenced within three calendar months after the commission thereof.
There still remain one or two other matters to be treated of; but they must form the subject of another Article.