THE MUNICIPAL CORPORATION: ITS WORKING AND MACHINERY.
As intimated at the end of our last article, there yet remain a few particulars of the machinery and working of a Municipal Corporation to be noticed and described before we can regard the series as complete; and, therefore, to that notice and description we now address ourselves,
OF THE POWER OF PURCHASING AND ALIENATING CORPORATE PROPERTY,
1. Of Purchase,
Another incident to a Corporation is the power to purchase and hold lands and other property for the benefit of themselves and their successors, and to alien the same.
And first of the power to purchase.
At common law it seems that Corporate bodies were capable of purchasing land to the benefit of themselves and their successors. But by the various statutes of mortmain they were prohibited from purchasing more lands without a license from the Crown. At the Revolution it was declared that the power of dispensing with statutes claimed on the part of the Crown was illegal and void. And as it was afterwards considered that this might be construed into a prohibition against the exercise of the royal power, in granting licenses to Corporations to take lands, it was thought prudent to give a legislative sanction to such licenses. Accordingly, by the stat. 7 and 8 William III., c. 37 , it was enacted, that it should be lawful for the Crown to grant to any Corporation licenses to alien in mortmain, and also to purchase, acquire, take and hold in mortmain, in perpetuity or otherwise, any lands, tenements, rents or hereditaments whatsoever.
Corporations, therefore, may now, upon obtaining the royal license, purchase real property to any extent.
With regard to personal property, as the statutes of mortmain have no reference thereto, Corporations are capable of taking that species of property to any amount.
One body corporate cannot be joint tenant with another; as in that case there could be no survivorship, both bodies being perpetual; and survivorship is a necessary incident of that species of tenure. Nor can a body Corporate be joint tenant with a natural person, because the latter cannot have the benefit of survivorship. But a Corporate body and a natural person may be tenants is common together, as survivorship is not an incident of that tenure.
By the statute 34 and 35 Henry VIII., c. 5 s. 14, bodies politic and Corporate are disabled from taking lands by accordance with the spirit of the statutes of mortmain. It was at one time considered that by the operation of the statute 43 Elizabeth, c4., in support charitable uses, a devise to a Corporation for such a use was valid, as being in the nature of an appointment. But now, by the statute 9 George II., c. 36, all immediate devises to charitable uses are void, except such as shall be made to the two universities of Oxford and Cambridge, and the colleges of Eton, Winchester, and Westminster.
This last mentioned statute was not designed to do away with perpetual charities altogether, but was aimed only against perpetual charities in lands. Therefore a bequest of money or other personalty to charitable uses will be good, provided the property be to be continued as personalty, and the testator has not directed his executors or trustees to lay it out in land.
2. Of Alienation.
Before the passing of the Municipal Corporation Act the legislature had interfered to prevent waste and dissipation of Corporate property, by its application towards the expenses attendant upon Parliamentary Elections; and by the 2 and 3 William IV., c. 69, it is enacted, that it shall not be lawful for any Municipal Corporation to pay or apply any money or personal chattel belonging to the Corporation in discharge of any such expenses; and that all bonds, &c., for the securing the same shall be void.
That any gifts, payments, &c., made by any Corporation for the purpose of inducing any person to exert himself in elections at a future time shall be considered to be within the Act.
That all conveyances, leases, &c., of real property for the purpose of satisfying or securing any expenses prohibited by the Act shall be void.
That all votes or resolutions passed by any Corporate body directing or authorising any payment forbidden by the Act shall be void.
That any Corporate officer who shall make any payment contrary to the Act shall be individually liable to repay and make good the amount or value thereof to the Corporation.
That any two Corporators may bring actions or suits in the name of the Corporation against any person offending against the Act.
And that any member of a Corporation offending against the Act shall be guilty of a misdemeanour, and for ever after disabled from holding any office in the same Corporation.
The power of disposing of the real property belonging to the Corporation has been still further limited by the provisions of the Municipal Corporation Act, whereby the Council are restrained from selling, mortgaging, or alienating the lands, tenements, or hereditaments of the body Corporate; or from granting leases for a term exceeding thirty—one years, to be computed for the making such lease, except leases of buildings or leases for building or improvement, which may be granted for seventy — five years, either at a reserved rent or a fine — Unless, in pursuance of some covenant contract or agreement bone fide entered into on or before the 5th day of June, 1835;
Or in pursuance of some resolution duly entered in the Corporation books, on or before the same day;
Or with the approbation of the Lords of the Treasury.
If the Corporation desire to sell, mortgage, or alienate, or in any other way dispose of any of the Corporate lands, or to grant any lease for a longer term than thirty-one years, or upon different terms and conditions than those above mentioned, in order to obtain the necessary sanction of the Lords of the Treasury:—
First. A notice of their intention to apply to the Treasury must be fixed on the outer door of the Town Hall, or in some public and conspicuous place within the Borough, one calendar month at least before such application; and
Secondly. A copy of the memorial intended to be sent to the Treasury, must be kept in the Town Clerk's office during such month, and be freely open to the inspection of every Burgess at all reasonable hours during that period.
The Council, however, may grant a renewal of any lease:—
First. Where on the 5th of June, 1835, they were under a covenant or agreement, express or implied, to renew;
Secondly. Where they have been enjoined by any deed, will, or other document to renew;
Thirdly. Where such renewal has been sanctioned by ancient usage, or by custom or practice; or
Fourthly. Where the Corporation shall have ordinarily made renewal.
As a further check upon any collusive disposition of the Corporate property, the Council who shall be first elected in any Borough under the Municipal Corporation Act, were empowered, within six calendar months after their election, to call in question all purchases, sales, and leases, and all contracts for such purchases, unless respectively made or entered into in pursuance of some bona fide contract or resolution entered into before the 5th of June, 1835, before mentioned; and also all divisions and appropriations of the monies, goods, and valuable securities, or of any part of the real or personal estate belonging to the Corporation, whether in their own right, or as trustees for charitable or other purposes which should have been made or contracted between the said 5th of June, and the day upon which their election should have been declared. The enquiry was to be conducted before a jury. The provisions upon this subject will be found in the 97th section of the Municipal Corporation Act.
By the 2nd section every inhabitant of any Borough and every Freeman or Burgess who had been admitted, or who might thereafter have been admitted if the Act had not been passed, shall have and enjoy the same share and benefit of the lands, &c., and the rents thereof, as fully and effectually as he might have had in case the Act had not been passed; provided that the total amount to be divided amongst the persons whose rights are therein reserved, shall not exceed the surplus which shall remain after payment of the interest of all lawful debts chargeable upon the real or personal estate out of which the sums so to be divided have arisen, together with the salaries of Municipal officers, and all other lawful expenses which, on the 5th June, 1835, were chargeable upon the same.
By the 92nd section it is enacted that all rents and other annual proceeds, and all fines payable to the Corporation are to be paid to the treasurer, and carried to the account of the Borough fund; which fund, subject to the payment of any lawful debt due from the Corporation which shall have been contracted before the passing of the Act, and securing all rights, interests, claims, or demands upon the estate of the body Corporate, by virtue of any proceedings either at law or in equity which have been already instituted, or which may be hereafter instituted, or by virtue of any mortgage or otherwise, shall be applied to the payment of the salaries of the recorder and other officers, and to other purposes therein mentioned.
By the 139th section of the Municipal Corporation Act, all advowsons, rights of presentation or nomination to any benefice or ecclesiastical preferment, in the gift of any body Corporate, or members of a body Corporate in their Corporate capacity, and not as charitable trustees, shall be sold at such time and in such manner as the Ecclesiastical Commissioners may direct, so that the best price may be obtained for the same :
The Council, with the consent of three of the Commissioners at least, are authorised and required to convey and assure such advowsons, &c., to the purchaser:
If any vacancy takes place before such sale, the bishop or ordinary of the diocese is to present.
The proceeds of the sale are to be paid to the treasurer of the Borough; and be invested by him in Government securities, for the use of the Corporation; and the annual interest payable thereon, is to be carried to the account of the Borough Fund. But under the direction of the Council, he may apply the proceeds of such sale towards the liquidation of any debt contracted before the passing of that Act by the Corporation.
The Municipal Corporation Act creates a public trust of the Corporate property, and of the funds raised for the purpose of the Act, subject, however, like other trust property, to the jurisdiction of the Court of Chancery. And although the Act contains provisions for correcting abuses in respect of the Corporate property, there is nothing in it to exclude the jurisdiction of that Court to prevent breaches of trust.
Where a hospital having a Corporate character was established in close connection with a Municipal Corporation, the ex-Mayor being the governor, the master and assistants being elected from the Corporation, and the Mayor and Aldermen being visitors; it was held that the Corporation an1 hospital were in equity incapable of contracting together; and a purchase by the Corporation of property belonging to the hospital was set aside.
We next treat of
SUITS BY OR AGAINST A CORPORATION.
Another incident to Corporations is the power of suing and being sued by their Corporate name.
They may maintain all such suits or actions as are necessary to assert or maintain their rights, and all such suits or actions may be maintained against them for the support of adverse claims.
As a Corporation cannot appear in person, appear by attorney.
If a Corporation has a head or any other integral component part, they cannot sue or be sued without it, as in that case the Corporation would be incomplete, they must
A foreign Corporation may sue as such in the courts of this country, but they must prove they we Incorporated in the foreign country.
If a Corporation sues or is sued by a wrong name, advantage can only be taken of the misnomer, by a plea in abatement.
A Municipal Corporation, not being a trading Corporation, cannot sue in assumpsit on an executory contract, as such a contract must be under seal.
But they may maintain assumpsit, upon an executed contract; as for the use and occupation of land, or of tolls.
In the case of a contract entered into by the Corporation which is executed before action brought, and under which the defendant has received the whole benefit of the consideration for which he bargained, it is no answer to an action of assumpsit by the Corporation, that the Corporation itself was not originally bound by the contract, by reason of its not having been made under their common seal.
A plea therefore to an action by a Corporation on an agreement which has been executed, that the plaintiffs were a Corporation aggregate, and that the agreement was not entered into by them under the common seal of the Corporation, or by any person authorised under seal, is bad on demurrer.
It seems too, that even if the contract had been executory only on the part of the Corporation, their suing upon it might amount to an admission on record by them, that such contract was duly entered into on their part, so as to be obligatory upon themselves; and that such admission on the record would stop them from setting up an objection in a cross action, that the contract was not sealed with their common seal.
Assumpsit will also lie for duties leviable within the jurisdiction of the Corporation, such as the duty of scavage, due by the custom of London.
Debt also will lie for such duties, or for penalties incurred by breaches of the Bye-laws of the Corporation.
So debt will lie upon a bond given to the Corporation; but a Corporation cannot sue upon a bond made to the Mayor in his own proper name.
On the other hand, the Mayor of a Corporation, who on the sale of certain Corporate lands by auction, signed a contract on behalf of himself and the Corporation with the purchaser, for the due performance of the conditions of sale, cannot, in his individual capacity, sue the purchaser for a breach of the contract.
A Corporation may maintain trespass for a trespass committed upon their lands or other possessions; or case, as for disturbance in holding their courts, or taking the profits of liberties granted to the Corporation, or against the sheriff of the county for executing process within the jurisdiction of the Corporation, where the return of writs has been granted to them.
They may also maintain trover, or ejectment.
In ejectment by a Corporation, it is not necessary that the demise should be stated by deed; and if so stated, it need not be proved.
A Corporation may institute a suit in equity for setting aside transactions fraudulent as against it, although carried into effect in its name by members of the governing body; and such right is not affected by the Attorney-General having also power to call in question such transaction.
A suit or action by a Corporation, does not abate by the death of one of the members; for the body still remains a Corporation.
A criminal prosecution will also lie at the instance of a Corporation; but they must be described in the indictment by their Corporate name; and the addition of such name as a description of the persons of which the Corporation is composed, will not be sufficient.
In the case of an action against a Corporation, it has been enacted, that the writ of summons in personal actions may be served on the Mayor, or on the Town Clerk, or Clerk or Treasurer of such Corporation.
But this enactment does not apply to actions of ejectment or quare impedit, which may still be commenced by original writ.
If a Corporation does not enter an appearance to the writ of summons or original process, the proper proceeding is by distringas, which should go against them in their public character; and under this process the Sheriff is authorised to distrain the lands and goods belonging to the Corporation.
When a Corporation is sued in equity, it is usual to make some of the principal members co-defendants in their individual capacity, because Corporations answer under their common seal, and not upon oath; and therefore some difficulty might be experienced, unless such a mode of procedure were adopted.
If a party has sustained injury by the act of others who he has reason to suppose acted under the authority of a Corporation, and he is unable to ascertain that fact, he may file a bill of discovery in equity against them and any of their officers, before he brings an action at law, suggesting that he intends to bring one, but cannot do so without the discovery prayed. If, however, the discovery of any of the matters prayed for should be prejudicial to the Corporation, and would not be material to the plaintiff's case, the defendants are not bound to reveal such facts.
An answer in equity, as has been already stated, must be made under the corporate seal; and if the proper officer refuses to affix the seal, where the majority of the members have agreed to the answer, the Court of Queen's Bench will compel him to do so.
Assumpsit will not lie against a Municipal Corporation upon an executory contract for the reasons previously stated, but for the same reason, it will lie in the case of an executed consideration; as to recover money wrongfully received by them.
Where an attorney had acted for a Corporation, sometimes having been retained under their corporate seal, and at other times without that authority; and the Corporation had paid him a sum of money in part payment of his bills generally, it was held in an action brought by him against the Corporation for the residue, that he was at liberty to appropriate the money so paid to him to that portion of his work which he had performed without a retainer under seal, as there was nothing to impeach the fairness of his bills, or the amount due to him in this respect, although, from want of legal form, he might not have been able to sue upon them.
Debt will lie against a Corporation, upon any contract entered into by them under the Corporate Seal.
By a Bye-law, certain Corporate lands which had been inclosed, were ordered to be let to such of the Burgesses as were willing to take them; and it was further ordered, that certain annual sums out of the rents arising from the inclosure, should be paid and distributed yearly among the twelve senior Burgesses residing within the Borough. It was decided that an action of debt was maintainable on this Bye-law at common law, by the parties to whom pecuniary benefits were granted by it; and that such action lay against the Corporation at large, under the 2nd section of the Municipal Corporation Act.
A Corporation aggregate is, generally speaking, not liable to be sued in tort, for any tortious act of their own; thus trespass, or replevin, or trover will not lie against them for such an act, but they are liable to be so sued for the tortious act of their agent, though not appointed under seal, if such an act be an ordinary service, such as a distress, professedly made under a statute, for a debt due to the Corporation; and a jury may infer the agency from the adoption of the act by the Corporation, as from their having received the proceeds of the seizure.
So trover will lie against a Corporation for a tortious conversion by their agent; and, if it should be essential to the conversion that they should have authorised it under seal, such authority will be presumed after verdict.
It seems doubtful whether ejectment can be maintained against a Corporation. If they are tenants to any party, such tenancy may be determined by a notice to them to quit, served on their officers; after which the owner of the premises may distrain the cattle of any persons found trespassing on his grounds, or he may bring his action against them, or he may maintain ejectment against any person in the actual possession of the premises.
At any rate, a Corporation will not be let in to defend an ejectment, without entering into the usual consent rule to confess themselves in possession; the object of that rule being merely to prevent the necessity of proving the identity of the premises at the trial.
Ejectment cannot be maintained against the bailiffs, pro tempore, of a Corporation, by merely proving payment of rent for the premises by the annual predecessors of the defendant in the same office for several years before, and service of the notice to quit on the defendants, the existing bailiffs; for the payment of such rent by the bailiffs in succession is merely evidence of a tenancy in the Corporation.
An indictment also will lie against a Corporation, in the same manner as against the inhabitants of a county or parish, for the neglect of any public duties which by law may be thrown upon them, such as for the non-repair of highways, bridges, or gaols; or for a misfeasance, thus an indictment will lie against an incorporated railway company, for obstructing a highway by their works. In such cases an indictment is maintainable against the Corporation, in its Corporate name.
An action on the case also may be supported by any individual who may have sustained a direct and particular damage by reason of such neglect; or a criminal information for a breach of duty and trust, as for applying to private purposes the revenues which are vested in them for public uses.
It may not be out of place here to remark that the members of the governing body are considered for some purposes as the agents of the Corporation; and if they exercise their functions for the purpose of injuring its interests and alienating its property, they are personally liable for any loss occasioned thereby. And where such a liability arises from the wrongful act of several parties, each is liable for all the consequences, there being no contribution between them, and each case is distinct, depending upon the evidence against each party.
OF PROCEEDINGS BY MANDAMUS.
It remains to consider briefly the proceedings by mandamus and quo warranto, in regard to Municipal Corporations.
It is an incident to all Corporations that they are liable to be visited; that is, that any irregularities which may arise in them from time to time may be enquired into and arrested by some competent authority.
In Ecclesiastical Corporations, for example, the ordinary is, by the canon law, the visitor. In Eleemosynary Lay Corporations the founder, his heirs, or assigns, are, at common law, the visitors. But in Civil Lay Corporations, including Municipal Corporations, as their existence is derivable from the Crown, the power of visitation is vested therein.
This power of visitation in the Crown, in regard to Municipal Corporations, is exercised by the Court of Queen's Bench, according to the rules of the common law; and it is chiefly exercised by means of the writ of mandamus, or of an information in the nature of a quo warranto.
A mandamus is a high prerogative writ, and is, in form, a command issuing in the Queen's name, directed to any person, or Corporation, or inferior Court of Judicature, within the Crown's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of Queen's Bench has previously determined, or at least supposes to be consonant to right and justice.
In its application, it may be considered as generally confined to cases where relief is required in respect of the infringement of some public right or duty, and where no effectual relief can be obtained in the ordinary course of an action at law.
It would exceed our limits to attempt to mention in detail all the cases in which it has been decided that a mandamus may be issued to a Corporation. It may be sufficient to mention a few leading examples.
A mandamus will lie to compel the Corporation to proceed to the election of Corporate officers, or the admission of a Freeman; or to restore any officer, such as Recorder, Town Clerk, or Clerk of the Peace, or any member of the Corporation who has been turned out, or disfranchised, or suspended. It will lie also, by statute, as has been before stated, to insert the name of a person in the Burgess List, whose claim has been rejected, or whose name has been expunged from the list.
In the case of a particular office, however, if it be already full by the possession of an officer de facto, a mandamus will not be granted to proceed to a new election until the person in possession has been ousted upon proceedings in quo warranto.
Thus, where a Councillor had, during his term of office, been left off the Burgess List by the Overseers for alleged non-payment of rates, but continued to exercise the office, the Court determined that they would not, on affidavit of these facts, issue a mandamus to the Mayor to proceed to a new election, as the vacancy must be first ascertained by a judgment on a quo warranto information.
A mandamus also will lie to compel a Corporation to fix their seal to a public document, to hold a court or a meeting at which public business is to be transacted, such as the granting of Corporate leases; or to a Corporate Officer, for the production, inspection, or delivery of public books and papers; the delivery of the Corporate Insignia, and in like cases.
The time within which the application must be made is generally regulated by the practice of the Court; but in the case of an application by a Burgess to have his name inserted in the Burgess List, it is expressly required to be made before the end of the term next following the Act complained of.
The general course of proceeding is as follows:—
The party who applies for the writ does so upon a suggestion, supported by oath, of his own right, and the refusal to do the act required to be enforced.
A rule is first granted directing the party complained of to show cause why the writ should not issue. If he shows no sufficient cause, or does not submit at once to the application, the writ is issued in the alternative to do the act, or show some reason to the contrary, to which an answer or return must be made by a certain day.
If the party to whom the writ is directed makes no return, he is punishable by attachment as for a contempt. If a return is made and the prosecutor wishes to object to it, he must demur; and if it is insufficient in law a peremptory mandamus is awarded; obedience to which will also be enforced by attachment. If the return is disputed by the applicant, or prosecutor, as being false in fact, he may traverse it; and if an issue is raised upon a point of fact, it may be tried before a jury, and if judgment is obtained by the prosecutor, a peremptory mandamus will also issue in this case.
In order however to expedite proceedings in mandamus, as far as the effect Corporate Officers in Boroughs, it has been enacted, that the party making the application may give a written notice to the party to be effected by the writ ten days before making the application, stating the name and description of the applicant, and the grounds of the application, accompanied with a copy of the affidavits in support of the same; whereupon the opposite party may show cause in the first instance, and if no, sufficient cause be shown the Court may, if they think fit, make the rule for the mandamus absolute, or grant a peremptory mandamus in the first instance.
It has been held that neither a Burgess nor a Coroner holds a Corporate Office within the meaning of this section, which applies only to the governing officers of a Corporation.
A writ of error may be brought upon a judgment in mandamus, but no action or other proceeding will lie against any person for anything done in obedience to a peremptory mandamus.
OF PROCEEDINGS BY QUO WARRANTO.
A writ of quo warranto is in the nature of a writ of right for the Crown, against any one who claims or usurps any office, franchise, or liberty, to enquire by what warrant, or authority, he supports his claim, in order to determine the right.
The writ being a prerogative writ, and the proceedings thereon being attended with considerable delay, in order to render the remedy more speedy and available in the decision of Corporation disputes between party and party, without any intervention of the prerogative, it was enacted by the statute 9 Ann, c. 20, that an information in the nature of a quo warranto, might be brought with leave of the Court, at the relation of any person desiring to prosecute the same, who is then styled the relator, against any person usurping, intruding into, or unlawfully holding any franchise or office in any Borough Corporate; and the statute provided for the speedy determination of the information, and directed that if the defendant be convicted, judgment of ouster, as well as fine, might be given against him, and that the relator should pay or receive costs according to the event of the suit.
In ordinary cases an information must be applied for and exhibited within six years after the swearing in of a party to any office; in the case, however, of a Mayor, Alderman, Councillor, or Burgess, the application must be made within twelve months after the election, or the disqualification, of the person against whom the application is made. But even though the application be made within the limited period, the Court will not grant it as a matter of right, if it appears there has been an unreasonable delay in making the application. Thus, where a person was enrolled a Burgess in November, and an application for a quo warranto was made on the last day of the following Hilary Term, the Court refused a rule, as no explanation was given of the delay.
By a rule of Court, leave will not be given to file an information in the nature of a quo warranto, unless, at the time of moving, an affidavit be produced, by which some person shall depose upon oath that such motion is made at his instance, as relator. It has been held to be a sufficient compliance with the terms of this rule, if the deponent swears, that he had directed an application to be made to the Court for a quo warranto, and that the motion would be made at the instance of the deponent as relator; but it will not be sufficient to state that it is the deponent's intention to become the relator.
It is not necessary that the relator should be a burgess; it will be sufficient if he is an inhabitant of the Borough, and subject to the control and government of the council; though it seems if he is not a member of the Corporation, the Court will require a stronger case to be made out before they will give leave to file the information.
When the application is made by individuals, and not by the Corporation, or their representative the Mayor, the Court will exercise a large discretion in granting a rule for an information, with reference to all the circumstances of the case, and particularly as to the promptness of the application, and the conduct and even the motives of the relator.
In no case will the Court grant an information unless it is made clearly to appear that the office is full de facto. It will not be sufficient to state merely that the party “has accepted the office;” but it must be shown in what manner he has done so; as that he has made the requisite declaration; or that he had acted in a Corporate capacity or the like.
A quo warranto may be granted for an usurpation of an office even after the resignation of it; for the resignation is no answer, though it may regulate the decision of the Court in imposing the fine.
One ground upon which the Court frequently refuses to grant a rule for the information is, that the relator has acquiesced or concurred in the election of the party against whom the application is made; but it is no objection that the relator has frequently acted with the party in Corporation business, it not appearing that he had actually concurred in the election.
In some cases where collusion is suspected the Court will order the relator to give security for costs.
The Court will not grant leave to file an information against an individual member of a Corporation. where the object of the application is obviously to call in question the validity of the Charter to the Corporation.
The proceedings in quo warranto may be carried on in the same manner as in the case of a mandamus, by giving notice to the party complained against, who may show cause in the first instance.
And now our task is ended, so far as this series of articles is concerned. We have laid before the public of the district the law, popularly explained, as it relates to the constitution of Municipal Corporations, and their working. We have not done this on our own authority — but have freely availed ourselves of the “Treatise on the Law of Municipal Corporations,” by Thomas James Arnold, barrister. We have done this the more freely, because, in his preface, the Learned Gentleman distinctly says that in his Treatise he “can lay no claims to originality;” that he “has but produced a methodical arrangement of materials which were already before him, or which the labours of others rendered it a matter of no great research to obtain.” We frankly, however, express our obligations to him for his methodical arrangement — and are sure our readers will join in that expression, for the aid his work has afforded them, in comprehending the machinery and the working of Municipal Corporations.