Huddersfield Chronicle (22/Aug/1868) - The Municipal Corporation: Its Working and Machinery
THE MUNICIPAL CORPORATION: ITS WORKING AND MACHINERY.
Our last article of this series brought us up to the completion of the Burgess Roll, after revision by the Revising Officer named, in the case of Huddersfield, for the initiatory Revision, in the Charter of Incorporation. That Revision has been held during the present week, by Wm. Shaw, Esq., the officer so appointed; and on the 26th inst. the Burgess Roll and Ward Lists revised, altered, and amended, in accordance with such Revision, must be "completed," including alphabetical lists of Burgesses for each Ward in the Borough, to be made out by the Town Clerk pro. tem.
When these several things are done, all will be ready for the Election of Common Councilman for each Ward, in the numbers fixed by the Charter. These elections will be held in the Borough of Huddersfield on the 4th of September next. This being the first election under the Charter, all the Common Councilmen for each Ward will have to be chosen — the retiring of one-third of these annually for the two years next succeeding, being provided for in manner hereinafter explained.
We now come, therefore, to treat of the Election of Councillors — to show how the elections are to be taken, and by whom — what are the qualifications necessary to be possessed to entitle a Burgess to be elected a Common Councilman — what the disqualifications — and other matters in relation to the office.
We must premise, that the first forming of the Burgess List for the Municipal Borough of Huddersfield, the Revision thereof, the first election of Councillors under it, and the first Meeting of the Common Councillors when elected, are extraordinary proceedings;
That though in what follows, we give the dates set forth in the Municipal Corporations Acts, as the days on which certain things are to be done yearly, when the Corporation has got into full operation, yet, for the present extraordinary proceedings, it must be understood that the date for entering upon the Revision of the Burgess Lists, was August, 18th inst.; that the Burgess Roll must be completed by the 26th August; That the elections of Common Councillors will take place on the 4th of September next; that instead of "the Mayor," the Returning Officer will be Edgar Fenton, Esq., Solicitor, the gentleman named in the Charter for that purpose; that instead of the Ward elections being taken before "Aldermen and Assessors," they will be taken before Deputy Returning Officers, to be appointed by Mr. Fenton, the Returning Officer;
And that whenever the word "Town Clerk" is used in what follows, it must be understood to mean Mr. Joseph Batley, Clerk to the Improvement Commissioners, who is the officer named in the Charter to perform certain requisite duties until a Town Clerk can be regularly appointed by the Town Council.
OF THE ELECTION OF COUNCILLORS.
The election of Councillors is to take place on the 1st of November in every year, or if that day be a Sunday, then on the following day.
By the 31st section of the Municipal Corporation Act, one-third of the number of Councillors are to go out of office on that day, being those who were elected in the previous year by the smallest number of votes. When the votes for any of such Councillors shall have been equal, the majority of the whole Council are to determine which of them shall go out of office.
It seems, therefore, that a mere majority of the members present will not be sufficient for this purpose, as it generally is for acts done by the Council, provided the numbers present are not less than one-third of the Council.
The same section provides, that any Councillor going out of office, as before stated, shall be capable of being re-elected.
Where the Borough is not divided into wards the election is to be held before the Mayor and Assessors.
In case of the death, or absence, or inability of the Mayor to preside at the election, the Council are to elect one of the Aldermen to preside in his stead.
Every Assessor, as soon as convenient after his election, is to appoint a deputy in writing, who is to act for him in case of his illness or incapacity to act at any election.
The Mayor has power to cause polling booths to be erected, or to hire rooms for taking the poll in different parts of the Borough, to be divided into compartments; and be is to appoint Poll Clerks, and make general regulations for taking the poll.
The voting at the election is to commence at nine o'clock in the forenoon, and finally to close at four in the afternoon; or it may be closed earlier if an hour shall have elapsed without a vote having been tendered, unless voters shall have been prevented from coming to the poll by any riot, or by any unlawful means of which the Returning Officer shall have notice.
WHO HAS THE RIGHT TO ELECT?
The right of Election of Councillors is vested in the Burgesses who are enrolled on the Burgess Roll.
Every Voter is entitled to vote for as many persons as there are Councillors to be chosen at that election.
If a Voter votes for more persons than are to be chosen, his votes are thrown away.
The method of voting is for the Voter to deliver to the Presiding Officer a voting paper, containing the names of the persons for whom he votes, with their descriptions and places of abode, signed by the Voter, with the addition of the name of the street or place where his property is situated for which he is rated.
No enquiry is permitted at the election as to the right of any Burgees to vote, except the following questions, which the Presiding Officer, if required to do so by two Burgesses entitled to vote, is to put to the Voter at the time he delivers the voting paper:—
- "Are you the person whose name is signed as A. B. to the voting paper now delivered in by you?"
- "Are you the person whose name appears as A. B. on the Burgess Roll now in force for this Borough, being registered therein as rated for property described to be situated in ____?"
- "Have you already voted at the present election?"
If the Presiding Officer asks any other .question than the foregoing from a corrupt motive, the Court of Queens Bench will, it seems, grant a criminal information against him. In one case a rule nisi for a criminal information had been obtained against an Assessor, who as the Presiding Officer had questioned a Voter as to his having signed another paper in favour of the other side; the rule was discharged, as it was not conclusively shown that the Assessor had been actuated by corrupt motives, but only upon the terms of the defendant’s paying all the costs.
If any person wilfully makes a false answer to any of the above questions, be is liable to be indicted for a misdemeanor.
The procuring another person to personate a Voter is also a misdemeanor.
WHERE BOROUGHS ARE DIVIDED INTO "WARDS," AS IN HUDDERSFIELD.
It was considered expedient that certain large Boroughs should be divided into wards; and the Municipal Corporation Act contains provisions for this purpose.
Where a Borough has been thus divided into wards, the Election is to take place before one of the Aldermen of the ward, to be chosen by the Councillors for that purpose, and two Assessors.
In case of the illness of the Alderman, or his incapacity to act, the Mayor may appoint another Alderman to act in his stead.
All the proceedings at the "Ward elections are to be conducted in the same manner as Elections for the whole Borough; and the Alderman and Assessors in the Ward are to have the same powers as to the Ward Elections as the Mayor and Assessors have at elections for the whole Borough.
In the Ward Elections the Burgesses are entitled to vote for that Ward in which the property for which they are rated is situated.
If a Burgess is rated for premises in more than one ward he is to select which he will vote for.
There is no time fixed, by the Act within which the Burgess is to make such election. It appears the usual course has been to summon the party whose property is so situated to appear at the Revising Court and make his election, and upon his neglecting to do so his name has been struck out of one of the ward lists.
It seems that if a Burgess has voted for one ward, he thereby has made his election, and cannot afterwards vote for another ward until there has been a fresh registration.
If a person is elected a Councillor for more than one ward, he is to choose within three days after notice for which ward he will serve; and in default of his doing so, the Mayor is to declare for which ward he shall serve.
In the event of any extraordinary vacancy occurring in the office of Councillor, the Mayor — or if the vacancy takes place in a Ward, then the Alderman of such Ward — is to fix a day, not more than ten days after the vacancy, on which a fresh election is to take place; and such election is to be conducted in the same manner as before stated in the case of an ordinary election, and the person who shall be elected at such occasional election is to remain in office so long as the person in whose room he has been chosen would have regularly remained in.
If from any cause the election of a Councillor has not taken place within the time limited by the statute, or if an election afterwards becomes void by default or accident, the Court of Queen’s Bench may award a mandamus in the same manner as under the 11 Geo. I., c.4, in the event of there being no election of Mayor or other Corporate Officers.
The rule for the mandamus must be directed to the Mayor, &c., of the Borough (according to the Corporate title), even though no Mayor were actually in existence at the time.
The Court will grant a mandamus to proceed to an election, although one has taken place de facto, if it appears to be merely colourable, or a nullity, or otherwise void.
There is no provision in the Act for the Nomination of Candidates for the office of Common Councilmen. Every Burgess is entitled to vote for such of his fellow Burgesses, up to the number required, as he pleases. Generally, however, there are extra official "nominations," as in the town of Huddersfield just now — where candidates are a-plenty. A better example is set in some of the out-Wards, where conciliatory and praiseworthy means have been taken to avoid party contests.
WHAT ARE THE LEGAL QUALIFICATIONS OF A COMMON COUNCILLOR?
The qualifications for a Councillor are as follow:—
1. Being entitled to be "on the Burgess List of the Borough;" which words would probably be taken to mean "the Burgess Roll," since, as before stated, the "Burgess Lists" are made out for each Ward. It is not required that the party should be actually on the List or Roll; but merely that he should be entitled to be so.
2. Possessing real or personal estate to the following amount:—
- In Boroughs divided into four or more Wards, £1,000, or being rated to the poor-rate upon an annual value of £30 at least.
- In Boroughs divided into less than four Wards, or not divided into Wards at all — £500; or being rated to the poor-rate upon an annual value of £15 at least.
WHAT THE DISQUALIFICATIONS?
The disqualifications are as follow:—
1. Being in Holy Orders, or the regular Minister of any Dissenting Congregation:
2. Holding any Office or place of Profit, except that of Mayor, in the gift or disposal of the Council; such as that of Town Clerk, Treasurer, Registrar of a Court of Record, and such like.
It has been enacted that the Office of Sheriff is not to be deemed an Office of Profit so as to create any disqualification under this Act.
If the Clerk to the Justices is elected a Councillor, which he may be, he cannot bo continued in the former situation.
It does not appear that the partner of a person holding a place of profit is disqualified.
3. Having directly or indirectly by himself or partner any share or interest in any contract or employment with, by, or on behalf of the Council.
But it is provided that a person is not to be disqualified by reason of his being a proprietor or shareholder of any company which shall contract with the Council for lighting the Borough, or supplying it with water, or insuring any part of it against fire.
The words "contract or employment" are not confined to such contracts only as partake in some degree of the nature of employments, as contracts for work, or the furnishing of supplies; but the word "contract" is to receive its ordinary legal construction.
It has been held, therefore, that a lease between the Mayor, &c., of a Corporation and A., containing the usual covenants on the part of the lessee, was a contract within the meaning of the Municipal Corporation Act, which disqualified A. from being a Councillor of the Borough. And where a lease was granted by a Corporation to a trustee for a Councillor, it was also held a disqualification.
But as much inconvenience would probably have resulted from this strict though undoubtedly correct interpretation of the statute, it has since been enacted, that the word “contract” in the above section shall not extend to any lease, sale, or purchase of any lands, tenements, or hereditaments, or to any agreement for any such lease, Ac., or tor the loan of money, or to any security for the payment of money only.
4. A fourth ground of disqualification is the having been convicted of bribery at any Corporate Election; for which offence the party is liable to a penalty of £50, to be recovered by action in one of the Superior Courts, which action must be brought within two years after the offence.
The offence of bribery is defined by the Act, to consist in asking or taking any money or other rewards by way of gift, loan, or other device, to give or forbear to give a vote in a Corporate Election ; or agreeing or contracting for any money, gift, office, employment or other reward whatever for the same purpose ; or by any gift or reward, or any promise, agreement, or security for any gift or reward, corrupting or procuring, or offering to corrupt or procure, any person to give or forbear to give his vote.
It has been held that the corrupt employment of a Voter in hauling stone at certain hire is a reward within the meaning of the Act.
An uncertificated bankrupt is not disqualified from being elected a Councillor, although, if while holding that or any other office he is declared a bankrupt or insolvent, he immediately becomes disqualified and loses his office, although he may be re-elected upon his obtaining his certificate, or paying his debts in full.
In the case of The King v. The Mayor, &c., of Oxford, a question was raised, whether, if a party were elected a Councillor, being duly qualified at the time of his election, and his name were afterwards improperly omitted in the Burgess List before his time of service as a Councillor was expired, such omission would vacate the office of Councillor; but the question was not decided.
In the subsequent case of The Queen v. Phippen, where a Councillor had during his term of office been put out of the Burgess Roll by the Overseers for alleged non-payment of rates, but continued to exercise the office, the Court refused upon affidavit of these facts and of the alleged default, to issue a mandamus to the Mayor or Alderman of the Ward to proceed to a new election; as the vacancy must be first ascertained by judgment on a quo warranto information.
If any person acts as Councillor or other officer without being duly qualified, or after he shall cease to be qualified, he is liable to a penalty of £50. to be recovered in an action in one of the superior Courts, — such action to be commenced within three months after the commission of the offence.
The action can only be brought by a Burgess, but the declination need not aver that the plaintiff is one.
It is necessary also that the plaintiff should serve a notice "in writing personally upon the party" within fourteen days after the committing of the offence. From the wording of the Act it is not very clear whether the service should be made by the plaintiff in person, or upon the defendant in person; but the latter construction is the more consistent with the intention of the Act.
If a party is actually enrolled on the Burgess Roll for the time being, he will not be liable to the penalty for acting as Councillor or other Officer, on the ground that he was not entitled to be on the Burgess List of the Borough.
All the acts of any person actually in possession of the office of Councillor, or any other, are declared to be valid notwithstanding his disqualification.
WHEN VOTES OF BURGESSES MAY BE THROWN AWAY.
This may be a convenient place to consider briefly the doctrine of elections that are invalidated by the votes of the electors being thrown away; which doctrine, it may be stated once for all, applies equally to the elections of all other officers besides Councillors.
The general rule may be stated thus:—
If a Candidate for an Office is ineligible at the time of the election by reason of any disqualification, and public Notice of such disqualification is given at the election, all votes given for that candidate, after such Notice, are thrown away; and if there are other eligible candidates, the one who has the largest number of votes will be duly elected.
If, however, the disqualification of the candidate who has the largest number of votes is capable of being removed, and is in fact removed before the other candidate is sworn in, the title of the former becomes perfect.
If the incapacity of a candidate is not announced till after the proceedings at the election have commenced, and votes have been taken, the votes given for the unqualified candidate before such announcement are not thrown away; another candidate, therefore, whose votes upon the whole poll do not exceed in number those votes which were given for the unqualified candidate before notice of his incapacity, will not be considered as duly elected.
THE DECLARATION TO BE TAKEN BY THE ELECTED.
The 50th section of the Municipal Corporation Act, enacts that no person elected as Councillor is to act in that capacity, (except for the purpose of administering the declaration therein mentioned,) until he shall have made and subscribed before two Aldermen or Councillors a declaration that he accepts the office, and that he will duly and faithfully fulfil the duties thereof.
The Aldermen and Councillors are by the same section authorized and required to administer the declaration to each other. But this administering of the declaration is not a purely ministerial act; and if a party elected as Councillor is known to be disqualified, the Aldermen and the other Councillors may, audit seems ought, to refuse to administer the declaration to him; and such disqualification would be an answer to a mandamus to the Alderman or Councillors on their refusal to administer such declaration.
Where a Borough officer has administered the declaration to a person elected as a Councillor, he cannot afterwards be the relator in a quo warranto information against the party elected for exercising the office.
"When a party elected to the office of Councillor has made the requisite declaration, the office becomes full de facto, and the right to such office can be questioned only by a quo warranto.
By the 51st section of the Act, every person elected Councillor is bound, if duly qualified for the office, to accept the same, by making and subscribing the declaration before-mentioned within five days after notice of his election, or to pay a fine to be fixed by a bye-law of the Council not exceeding £50.
The notice required must be a regular notice; such as that the party was actually present when his election was announced, or was apprised of the fact by some official authority. Where, therefore, a party was elected to a Borough Office during his absence from the Borough, and took the declaration within five days after his return, not having received notice of the election from any official source before his return, it was held sufficient; although he had been previously made aware that he was elected, by family letters and the congratulations of friends whom he casually met.
It seems that if the Council neglect to make a bye-law fixing the amount of fine in such cases, they may be compelled to do so by mandamus.
If the fine is not paid, any Borough Justice, upon the application of the Council, may issue a distress warrant to recover the same.
Independently of the fine, it seems that the party duly elected is liable, at common law, to be compelled to serve by mandamus; and it has been held that the payment of a fine, imposed by a bye-law, for not serving a Corporate office was no answer to a mandamus, as the bye-law did not state that the payment of the fine was in lieu of service. As the 51st section of the Municipal Corporation Act, however, says that the payment of the fine shall be in lieu of the acceptance of the office, it seems clear that if a party elected under the Act refuse to accept the Office and pay the fine fixed by the Council, he cannot be compelled to serve.
PROCEEDINGS WHEN ELECTIONS ARE CONCLUDED.
When the Election of Councillors is concluded, the Mayor and Assessors are to examine the voting papers; and to declare what persons have been elected. The duty of the Mayor and Assessors in this respect is purely ministerial, and it seems they are not required to notice whether the persons elected are qualified or not.
In the case of an equality of votes, the Mayor and Assessors or any two of them are to choose which person shall be deemed to be elected.
The Mayor is to cause the voting papers to be kept in the office of the Town Clerk for six calendar months after the Election.
Any Burgess may inspect the voting papers of any year on payment of One Shilling; but it seems that the Town Clerk is not compelled to allow two Burgesses at once to inspect the voting papers, or to give more than one of the papers to one person at the same time; but he is bound to allow any Burgess who brings a list of his own to compare it with the papers produced, and mark it according to what he finds there.
On the day next but one after the day of the Election, by two o'clock in the afternoon, the Mayor (or in Boroughs divided into Wards, the Aldermen and two Assessors) is to publish a List of the persons elected.
Where the publication has been duly made, and after two o'clock the officer, whose duty it was to make the return, discovered a supposed error in counting the votes, and signed and published a second List, it was held that such second publication was invalid, and that the party whose name was first published was duly elected.
Where the publication had not been made on the right day, the Court of Queen’s Bench held, they had no authority to grant a mandamus to make a publication and to swear in the party whose name ought to have been published as having been elected.
If the Election of Councillors should not take place on the appointed day, it may be held upon the following day.
These several proceedings concluded, the Town Councillors are in a position to meet for the transaction of business. At their first meeting their first duty is to elect the Mayor, and then the requisite number of Aldermen, to complete the body corporate. Of these elections,— showing who may, and who may not, be elected, we shall treat in our next.