Qualification which, if equally divided between them, would qualify each to be elected, each of the persons so jointly seized, possessed, or rated, may be elected; but the property shall not at the same time qualify both the owner and the occupier thereof. of elective members. Qualification, &c., of mem bers of Tunbridge Wells Local Board of Commissioners. 27 & 28 Vict. c. 83, s. 5. Members of If a district have a known and defined boundary, as that of a parish or borough, the population will readily be ascertained from the last census taken by the authority of Parliament, but not otherwise, as the population returns invariably show the population of entire parishes or townships, &c., and not of parts of parishes or townships, however they may be defined in respect of their boundaries. The qualification of the Tunbridge Wells Commissioners shall be the ownership or occupation of property actually rated to the rates levied under the Local Government Act, 1858, within their district, at an annual value of not less than £30, and in lieu of the declaration prescribed by sec. 17 of the Tunbridge Wells Improvement Act, 1846, to be made by the said Commissioners, the following declaration shall be used; that is to say : "I, A. B., do solemnly declare, that I am the [owner or occupier, as the case may be] of property actually rated to the rates autho"rized to be levied by the said Commissioners, at an annual value of not less than Thirty Pounds.” It shall not be obligatory on any of the fifteen members of the University the Local Board from time to time elected by the University of Oxford not of Oxford, to make any declaration of qualification for the required to office of member of the Local Board. make declaration. 28 & 29 Vict. c. 108, s. 6. Where a Local Act prescribed qualifications for Commissioners to be elected to execute the Act, and among others, that the candidate should at the time of the election be rated in the poor rate for the township, and possess property to the amount of £1500 in the township, it was held that this qualification was not possessed by a candidate who possessed such property, but was not rated in any rate made, allowed, and published before the election; although before the election and after the allowance and publication of the last rate he had become tenant of land within the township, had been entered as rateable in respect thereof in a list added to the rate allowed, and had paid a proportional part of such rate under 17 Geo. II. c. 38, S. 12. (1) (1) Reg. v. Eddowes, 1 E. & E. 330; 28 L. J. Q. B. 84. CHAPTER IV. DISQUALIFICATION OF MEMBERS OF LOCAL BOARDS. vents. No bankrupt, insolvent, or other person not qualified in the Bankrupts manner before mentioned, is capable of being elected a member and insolof a Local Board. If after election, or being selected by the 11 & 12 Vict. town council otherwise than out of their own number, the per- c. 63, s. 19. son elected or selected shall lose or discontinue to hold his qualification, or shall be declared a bankrupt, become an insolvent debtor, or compound with his creditors; or if any member of the Local Board accept or hold any office or place Holding office of profit under the Board, or shall in any manner be concerned of profit. in any bargain or contract entered into by the Board, or parti- Ib. cipate in the profit of any such contract, or of any work done Contractors under the authority of the Public Health Act, 1848, in or for Ib. the district for which he is a member, he shall cease to be such member, and a vacancy will thereupon arise. The following illustrates what is being concerned in a contract with a body of Commissioners. In an action for penalties against a Town Commissioner under a local Act which incorporated the Commissioners Clauses Act, 1847, 10 & 11 Vict. c. 16, for acting as a Commissioner after having become disqualified, a bill was produced made out by the defendant, and addressed to the Commissioners, for lime purporting to have been supplied at four different times, and receipted by the defendant; it was held that there was evidence to go to a jury, that the defendant was "concerned in or participated in a contract" within the 9th section of the 10 & 11 Vict., c. 16, and that he thereby became "disqualified" within section 15 of the same Act. (1) In Woolley v. Kay, (2) however, the Court seemed to be of opinion that a mere casual dealing, such as going to a shop for an article and paying for it over the counter, would not be contracting for the supply of articles so as to make a person liable to a penalty if he afterwards continued to act as a Commissioner under a local Act. With regard to the insolvency of members of Local Boards, see the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71. No member of the Local Board shall, however, vacate his Exceptions. office by reason of his being interested in any sale or lease of 21 & 22 Vict. any lands, or any loan of money to the Local Board; or by c. 98, s. 25. (1) Nicholson v. Fields, 31 L. J. Exch. 233; 7 H. & N. 810. (2) 25 L. J. Exch. 351. D Exceptions. 11 & 12 Vict. c. 63, s. 19. reason of his being interested in any contract with the Local Board as a shareholder in any company established under the provisions of the Joint Stock Companies Act, with or without a limited liability. No person who is a proprietor, shareholder, or member of any water company, or company or concern for carrying on of any other works of a like public nature, shall, however, be disabled from being or continuing to act as a member of the Local Board by reason of any contract entered into between the company and the Board; but such person 21 & 22 Vict. shall not vote at the Board upon any question in which the company is interested: the Local Government Board may, however, in any case dispense with this prohibition. Again, any elected or selected member who c. 98, s. 25. What shall be deemed a vacancy. II & 12 Vict. c. 63, s. 18. 21 & 22 Vict. c. 98, s. 25. 5 & 6 Wm. IV. c. 76, s. 52. Penalty on disqualified persons acting. II & 12 Vict. c. 63, s. 19. Proof of offence. Proceedings for recovery of penalty. 1. Neglects to make and subscribe the declaration (ante p. 31), for the space of three months next after his election; or 2. Who shall be absent from the district for more than six months at one and the same time, unless in the case of illness, shall be deemed to have refused to act, and shall cease to be a member of the Board, and a vacancy shall thereupon arise. As to the disqualification of members of town councils, or members selected by town councils, see ante, p. 29. They cannot, as above mentioned, continue members of the council if they be declared bankrupt or compound with their creditors; and this, by 32 & 33 Vict. c. 62, sect. 21, extends to every arrangement or composition with creditors under the Bankruptcy Act, 1869, whether by deed or otherwise. Persons not qualified to act as members of the Local Board, or who have not made and subscribed the declaration before mentioned, or who after becoming disqualified or disabled from acting, shall so act, are liable to a penalty of £50, recoverable by any person, with full costs of suit, by action of debt. In an action so brought, it is sufficient for the plaintiff to prove that the defendant, at the time of the alleged offence, acted as a member of the Local Board; and the burden of proving qualification, and of having made the declaration, and negativing disqualification, shall be upon the defendant. As regards proof of the offence alleged in proceedings for the penalty, it is to be observed that acting in an office is proof of being an officer, and therefore when persons who have exercised a public duty are shown to have done an act within the scope of that duty at a particular time, the Court will assume that they were exercising the public duty when they did the act, without proof that they were or had been discharging such duty at the very time; if it be within a reasonable time of the act done, it is sufficient. (1) No proceedings for the recovery of this or any other penalty (1) Doe d. Peter Hopley v. Young, 8 Ad. & El. 63; 15 L. J. Q. B. 9. c. 63, s. 19, s. 133. incurred under the Public Health Act, 1848, can be had or Proceedings taken by any person other than by a party grieved, or the for recovery of Local Board of Health in whose district the offence is com- penalty. mitted, without the consent in writing of the Attorney-General 11 & 12 Vict. first had and obtained; but it is open to doubt, and it has not yet been decided, whether the prohibition renders a proprietor in a water company, or in a company for carrying on works of a public nature, voting as a member of the Local Board upon any question in which the company is interested, liable to the penalty of £50 imposed on a disqualified or disabled person acting as such member. (1) That question will however be avoided, if a dispensation be obtained from the Local Government Board under 21 & 22 Vict. c. 98, s. 25, sub-section 3. Again, a person who is not aggrieved, otherwise than as one of the public, by a person committing an offence under sect. 19, is not entitled to sue under sect. 133 without the consent of the Attorney-General. A plaintiff suing for the penalty of £50 without the consent of the Attorney-General, alleging that he was the party grieved as a ratepayer of the borough, and also as a candidate, the fact being that he was an unsuccessful candidate at the election in which the defendant, though disqualified, had been elected, was held not to be a party grieved within the meaning of the Act, and that the consent of the Attorney-General should therefore have been obtained to his bringing the action. It was also held in the same case that the declaration in the action was not authorized by sect. 15 of the Commissioners Clauses Act; and under sect. 133 of the 11 & 12 Vict. c. 63, it was bad in arrest of judgment, inasmuch as the plaintiff not being a party grieved, it ought to have alleged the consent of the Attorney-General; and further, that although the want of the consent of the Attorney-General was an objection which might be taken by plea or demurrer, it was also a ground for staying the proceedings after the trial. (2) Where a declaration alleged that the defendant became a Commissioner, and that whilst such Commissioner, being directly concerned and interested in a certain then existing contract theretofore made by the defendant with the then Commissioners for the sale by the defendant of a plot of land to the Commissioners to be used for the purposes of the Act, acted as a Commissioner in the execution of the Act, it was held that the declaration disclosed no cause of action for a penalty under the Act. (3). With regard to Commissioners acting under a Local Improvement Act without being qualified, it has been held that they were liable to the penalty provided by a former Act, the elective provisions of which had been repealed by an amending Act, and the election having taken place under such amending (1) Boyce v. Higgins, 14 C. B. 1; 23 L. J. C. P. 5; 18 Jur. 333. (2) Hollis v. Marshall, 27 L. J. Exch. 236; 2 H. & N. 755. 351. 5 & 6 Wm. IV. c. 76, s. 28. Saving clause. 11 & 12 Vict. c. 63, s. 19. Defects in election not to invalidate Ib. s. 29. Act. In the particular case the amending act provided that it and the former Act should be read as one Act, which the Court said, is the same as if the clause imposing the penalty had been re-enacted in words in the second Act. The penalty was imposed on all persons acting without being duly qualified as aforesaid, that is, as provided for by the amending act. (1) A contract with a town council acting as a Local Board of Health in a corporate district, operates as a disqualification under the Municipal Corporation Act; but a person who has contracted with the council of a borough, so acting for the performance of public works in the borough, may purchase of a member of the corporation articles required in the course of those works without such member thereby becoming disqualified for holding a corporate office in the borough under the 5 & 6 Wm. IV. c. 76, s. 28. (2) Until the recovery of the penalty of £50, all acts and proceedings of any person disqualified, disabled, or not duly qualified as a member of the Local Board, or who has not made or subscribed the declaration, are valid to all intents and purposes whatsoever. All proceedings of the Local Board of Health and of any person acting as a member or under the authority thereof, proceedings. shall, notwithstanding any defect in the selection or election of such Board, or any member thereof, be as valid and effectual as if no such defect had ever existed. With reference to this provision, see the case of Bowling v. Bailey in the Queen's Bench, post. (1) Gough v. Hardman, 1 L. T. 375. (2) Le Feuvre v. Lankester, 3 E. & B. 530; 23 L. J. Q. B. 254; 18 Jur. 894. |